ORDER XXI  ATTACHMENT OF PROPERTY - RULE 48, 49, 50, 51, 52, 53, 54, 55, 56, 57 OF CODE OF CIVIL PROCEDURE 1908

What is Attachment of salary or allowances of servant of the Government or railway company or local authority? What is Attachment of salary or allowances of private employees? What is Attachment of partnership property? What is Execution of decree against firm? What is Attachment of negotiable instruments? What is the process of Attachment of property in custody of Court or Public officer? What is Attachment of decrees? What is Attachment of immovable property? How is Removal of attachment after satisfaction of decree? What is Order for payment of coin or currency notes to party entitled under decree? What is Determination of attachment? Rule 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 of Order XXI of Code of Civil Procedure 1908

Attachment of salary or allowances of servant of the Government or railway company or local authority, Attachment of salary or allowances of private employees, Attachment of partnership property, Execution of decree against firm, Attachment of negotiable instruments, Attachment of property in custody of Court or Public officer, Attachment of decrees, Attachment of immovable property, Removal of attachment after satisfaction of decree, Order for payment of coin or currency notes to party entitled under decree and Determination of attachment are defined under Rule 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57  of Order XXI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 48 Order XXI of Code of Civil Procedure 1908 "Attachment of salary or allowances of servant of the Government or railway company or local authority"

(1) Where the property to be attached is the salary or allowances of a 28[servant of the Government] or of a servant if a railway company or local authority 9[or of a servant corporation engaged in any trade or industry which is established by a Central Government, Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly installments as the Court may direct; and, upon notice of the order to such officer as the appropriate Government may by notification in the Official Gazette appoint in this behalf,-

(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly installments, as the case may be;

(b) where such salary or allowances are to the disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly installments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time, to be disbursed by the aggregate of the amounts from time to time remitted to the Court.

(2) Where the attachable proportions of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2) shall, without further notice or other process, bind the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits, if he is in receipt of any salary or allowances payable out of the Consolidated Fund of India or the Consolidated Fund of the State or the funds of a railway company or local authority or corporation or Government company in India; and the appropriate Government or the railway company or local authority or corporation a Government company, as the case may be, shall be liable for any sum paid in contravention of this ruler.

Explanation.-In this rule, "appropriate Government" means,-

(i) as respects any person in the service of the Central Government, or any servant of a railway administration or of a cantonment authority or of the port authority of a major port, or any servant of a corporation engaged in any trade or industry which is established by a Central Act, or any servant of a Government company in which any part of the share capital is held by the Central Government or by more than one State Governments or partly by the Central Government and partly by one or more State Government and the Central Government;

(ii) as respects any other servant of the Government, or a servant of any other local or other authority, or any servant of a corporation engaged in any trade or industry which is established by a Provincial or State Act, or a servant of any other Government company, the State Government.

Rule 48A Order XXI of Code of Civil Procedure 1908 "Attachment of salary or allowances of private employees"

(1) Where the property to be attached is the salary or allowances of an employee other than an employee to whom rule 48 applies, the Court, where the disbursing officer of the employee is within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly installments as the Court may direct; and upon notice of the order to such disbursing officer, such disbursing officer shall remit to the Court the amount due under the order, or the monthly installments, as the case may be.

(2) Where the attachable portion of such salary or allowances is already being withheld or remitted to the Court in pursuance of a previous and unsatisfied order of attachment, the disbursing officer shall forthwith return the subsequent order to the Court issuing it with of all the particulars of the existing attachment.

(3) Every order mode under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind the employer while the judgment-debtors is within the local limits to which this Code for the time being extents and while he is beyond those limits, if he is in receipt of salary or allowances payable out of the funds of an employer in any part of India; and the employer shall be liable for any sum paid in contravention of this rule.

Rule 49 Order XXI of Code of Civil Procedure 1908 "Attachment of partnership property"

(1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against firm or against the partners in the firm as such.

(2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property, and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within India.

(5) Every application made by any partner of the judgment-debtor under sub- rule (3) shall be served on the decree-holder and on the judgment-debtor, and on such of the other partners as do not join in the application and as are within India.

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners and all orders made on such application shall be similarly served.

Rule 50 Order XXI of Code of Civil Procedure 1908 "Execution of decree against firm"

(1) Where a decree has been passed against a firm, execution may be granted-

(a) against any property of the partnership;

(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner ;

(c) against any person who has been individually served as a partner with a summons and has failed to appear;

Provided that noting in this sub-rule shall be deemed to limit or otherwise affect the provisions of a section 30 of the Indian Partnership Act, 1932 (9 of 1932).

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such court may grant such leave, or, where such liability is disputed, may order that the liability of such persons be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2) the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not lease, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

(5) Nothing in this rule shall apply to a decree passed against a Hindu Undivided Family by virtue of the provisions of rule 10 of Order XXX.

Rule 51 Order XXI of Code of Civil Procedure 1908 "Attachment of negotiable instruments"

Where the property is a negotiable instrument not deposited in a Court, not in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

Rule 52 Order XXI of Code of Civil Procedure 1908 "Attachment of property in custody of Court or Public officer"

Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and. an interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued :

Provided that, where such property is in the custody of a Court, any quest on of title or priority arising between the decree-holder and any other person, not being the judgment -debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

Rule 53 Order XXI of Code of Civil Procedure 1908 "Attachment of decrees"

(1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made,-

(a) if the decrees were passed by the same Court, then by order if such Court, and

(b) if the decree sought to be attached was passed by another Court. then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requiting such other Court to stay the execution of its decree unless and until-

(i) the Court which passed the decree sought to be executed cancels the notice, or

(ii) (a) the holder of the decree sought to be executed, or

(c) his judgment-debtor with the previous consent in writing of such decree-holder. or with the permission of the attaching Court,

applies to the Court receiving such notice to execute the attached decree.

(2) Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under subhead (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceeds to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another of decree the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and, to be entitled to executive such attached decree in any manner lawful for the holder thereof.

(4) Where the property, to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1) the attachment shall be made by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6) On the application of the holders of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment of the attached decree made by the judgment-debtor in contravention of such order 16[knowledge thereof or] after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

Rule 54 Order XXI of Code of Civil Procedure 1908 "Attachment of immovable property"

(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon conspicuous part of the courthouse, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village

Rule 55 Order XXI of Code of Civil Procedure 1908 "Removal of attachment after satisfaction of decree"

Where -

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or

(c) the decree is set aside or reversed,

the attachment shall be deemed to be withdrawn, and in the case of immovable property, the withdrawal shall. if the judgment-debtor so desires, he proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

Rule 56 Order XXI of Code of Civil Procedure 1908 "Order for payment of coin or currency notes to party entitled under decree"

Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

Rule 57 Order XXI of Code of Civil Procedure 1908 "Determination of attachment"

(1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.

(2) If the Court omits to give such direction, he attachment shall be deemed to have ceased.

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