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    Saturday, 2 December 2017

    Exemption of Property from Attachment and Sale

    1. INTRODUCTION
    A court has no power under the code to prescribed what course a decree holder has to take or realization of his claim or inherit property he can attach. The decree holder is free to attach any properties as he likes. He is not restricted to attaching properties of the judgment debtor necessary for the satisfaction of the decree.

    2. RELEVANT PROVISION OF LAW
    Relevant provision of law regarding to concerned topic is section 60 of CPC (Code of Civil Procedure)

    3. OBJECT
    The object of section 60 of the Civil Procedure Code seems to provide 50% of the salary to the government employee as subsistence allowance so that he may maintain his family.

    4. PROPERTY LIABLE TO ATTACHMENT AND SALE IN EXECUTION OF DECREE UNDER SECTION 60 OF CPC
    This section declares what properties are liable to attachment and sale in execution of a decree and what properties are exempt properties attachable under this section are declared to be not attachable in execution of decree.

    (I) Property
    It includes every possible interest which a person can have in any kind of property, whether movable or immovable.
    Example: Vested beneficial interest, tangible interest in property.

    (II) Saleable Property
    The word saleable means saleable by auction at compulsory sale under the orders of the court.
    Example: The equity of redemption of a mortgagor property is saleable property and is liable to be attached and sold in execution of a decree against him. A preliminary decree for the realization of unpaid consideration on a mortgage bond is attached under it.

    (III) Government grant containing prohibition again Alienation
    When a government grant contains a prohibition against alienation of an estate and the power of voluntary transfer is thus taken away and the judgment debtor is only entitled to enjoy profit during his lifetime, the decree holder can proceed only against the profits and not against the estate.

    (IV) Security Deposit
    Money or other valuable security, deposited as security for the due performance of duty by a servant with his master may be attached in execution of a decree against the servant but the attachment will be subject to the lien which the master has upon the deposit and the deposit cannot be sold until the same is at the disposal of the servant and free from lien of the master at the expiration of the period of employment.

    (V) Land Assigned for Maintenance
    Where land was assigned to a Hindu widow for her maintenance with a proviso against alienation, it was held that she had no saleable interest in the usufruct.

    (VI) Attachment
    Case Law: Shahid Baig vs. Ghaffar Ahmad
    In this case there is difference between monthly salary which is to be attached and amount recoverable by a government employ on account of wrongful dismissal in pursuance of direction of court.

    (VII) Attachment of Money Deposited with Bank
    It is well settled that as between the bank and its constituents, the current credit balance of the latter is a debt payable as such although no demand is made for its payment. Vested beneficial interest of judgment debtor under a trust deed is not exempt attachment.

    (VIII) Contingent Interest
    A mere contingent interest although transferable is not attachable.

    (IX) Service of Public Nature
    Hand burdened with the performance of a service of public nature is inalienable and cannot be attached.

    (X) Disposing Power
    A property may not belong to a judgment debtor and yet he may have disposing power over it exercisable for his own benefit. In such cases, the property is liable to attachment and sale subject to the provision to this section.

    (XI) Trustee of a Charity
    A trustee of a religious endowment has no disposing power the corpus of the trust estate exercisable for his own benefit can be attached.

    (XII) Auctioneer
    An auctioneer has no disposing power over whole of the sale proceeds of goods sold by'him, but only over that portion of its which represents his commission. Hence, whole of the sale proceed, in the hands of an auctioneer cannot be attached in execution of a decree against him but only so much of it as represents his commission.

    (XIII) Life Policy
    Where a married man effects a policy on his own life and the policy is expressed on the fact of it to be for the benefit of his wife, or of his wife and children or any of them, the declaration on the face of ' policy that the policy is for the benefit of his wife or children to create a trust and the insured has a disposing power over the policy for his own benefit and the policy may be attached by his creditors, unless it has been assigned as provided by section 130 of the Transfer of Property Act, 1882, or a trust has been declared in respect thereof as provided by section 5 of the Trust Act, 1882.

    (XIV) Debts
    Debits are liable to attachment and sale. A debt is an obligation to pay a liquidated sum of money. Money that has not yet become due does not constitute a debt, for there is no obligation to Pay that which has not yet become due.

    5. EXEMPTION OF PROPERTY FROM ATTACHMEN AND SALE

    (I) NECESSARY ARTICLES:
    (i) Necessary Wearing Apparels
    Necessary wearing apparels of a person cannot be attached in execution. The exemption applied to jewellery worn by a Hindu married woman.

    (ii) Cooking Vessels
    It includes vessels required for cooking operation such as a thali and a gagru and they cannot be attached in execution.

    (II) NECESSARY TOOLS
    (i) Tools of Artisans
    A soap boiler who practices the art of making soap is an artisan and the paraphernalia of his soap factory tools of an artisan. So also all utensils used for making sweetmeats and sewing machines in a tailor's shop.
    Exception:
    Musician, washerman, surgeons and doctors are not artisans.

    (ii) Agriculturist

    A person is order to fall in the definition of agriculturist must be agriculturist by profession and, solely dependent upon agriculture for his livelihood.

    (iii) Implements of Husbandry
    It will include an;
    (a)          engine
    (b)          a water pump necessary to irrigate fields
    (c)           charaks
    (d)          Kadhasi and
    (e)          a tractor

    (III) NECESSARY BUILINGS
    (i) Houses Occupied by Agriculturists
    House of agriculturists used only for agriculture purposes is exempted from attachment and sale;  Where the judgment debtor was a big landlord and cultivated his land through managers and hairs the bungalow of such agriculturist was held to be not exempted from attachment.

    (IV) RIGHT OF DAMAGES

    (I) Right to sue for damages
    Mesne profits are in the nature of damages and the right to sue, for mesne profits, is a right to sue for "damages". Such a right cannot be, therefore, attached and sold in execution of a decree against the entitled to the right.

    (V) RIGHT OF SERVICE
    (i) Right of Personal Service
    A Priest's share in the net balance of the offering to a deity may be attached and sold. Money due to firm or managing agents is not for personal service and sot can be attached.

    (VI) PERSONAL BENEFITS
    (i) Gratuities allowed by Government
    The gratuity referred to in this section is a bonus allowed by Government to its servants in consideration of past service. It may be allowed to one who is not a pensioner or it may be allowed to a pensioner in addition to his pension. In either case, it is exempt from attachment.

    (ii) Political Pensions
    All pensions of a political nature payable directly by the Government are political pensions. A pension for which the Government has .given a guarantee that it will pay a treaty obligations contracted with another sovereign power is a political pension.

    (Vll) PERSONAL EARNINGS
    (i) Wages of Labourers
    A labourer is a person who earns his daily bread by personal and manual labour, or in occupation which required title or no .art skill or previous education. Thus, a person who agrees to spin cotton and to receive a certain amount of money for a certain quantity of cotton spun by them are labourers and their wages cannot be attached.

    (ii) Salary
    The scope of this clause is widened and it applies to all salaries and it gives the additional protection to three classes of person, namely
    (a)          government officers
    (b)          person in the employ of a Railway Company and
    (c)           those who employed by a local authority.
    The salary can be attached partially, except where it does not exceeds Rs. 100/- monthly, in which case, whole of it is exempt for attachment. In view of this exemption, it was held that a public officer could not be required to pay into court a part of his salary as a Condition precedent to his blip adjudged insolvent.

    (VIII) Deductions Made from the Employees:
    (I) Compulsory Deposits in Provident Funds
    A compulsory deposit cannot be attached so long as it retains the character of compulsory deposit. An objection to attachment of compulsory deposit can be made by the garnishee.

    (IX) Succession
    Expectancy of Succession, etc:
    The interest which a reversionary has in the property of a person on the death is an expectancy of succession by survivorship. In other words, it is an interest expectant on the death to which the reversionary can only succeed if he survives.

    (X) Future Maintenance:
    (i) Right to Future Maintenance
    The right to future maintenance cannot be attached. However, such right amounts to an interest or charge upon property. It is not exempt from attachment. A court can attach arrears of maintenance. An annuity is not a right to future maintenance and it may be attached and sold. A receiver can be appointed to realize the maintenance.

    6. WHEN OBJECTION TO BE RAISED THAT PROPERTY NOT LIABLE TO ATTACHMENT AND SALE
    Objections to attachment if raised by a party to the suit in which the decree is passed, shall be determined by the court executing the decree under section 47 and a separate suit will be barred by a third party, it shall be determined either by means of proceedings. An objections can be taken at any stage and its provisions cannot be waived. The objection may be barred by the principle of constructive res judicata.

    7. CONCLUSION

    To conclude that section 60 of C.P.C declares that what properties are liable to attachment and sale in execution of decree and what properties are exempted from attachment and sale.
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    Item Reviewed: Exemption of Property from Attachment and Sale Rating: 5 Reviewed By: Usman Ali
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