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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