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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Attachment of debt and share:

In the case of (a) a debt not secured by a negotiable instrument, (b) a share in the capital or a corporation, the attachment shall be made by a written order prohibiting,

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(i) In the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the court;

(ii) In the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend.

A copy of such order shall be affixed on some conspicuous part of the court-house and another copy shall be sent in the case of the debt to the debtor, and in the case of share, to the proper officer of the corporation. (Order XXI, Rule 46).

Attachment of share in movable property:

Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way. (Order XXI, Rule 47).

Attachment of salary or allowances:

Where the property to be attached is the salary or allowance of a servant of the Government or of a servant of a railway company or a local authority or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company as defined in the Companies Act, 1956, the attachment shall be made by the court by making an order that the amount shall, subject to the provisions of section 60 of the Code (property not liable to attachment and sale in execution of a decree), be withheld from such salary or allowances either in one payment or by monthly instalments. The disbursing officer shall then withhold and remit to the court the amount due under the order or the monthly instalments. (Order XXI, Rule 48).

Order XXI, Rule 48-A of the Code of Civil Procedure provides that where the property to be attached is the salary or allowances of a private employee, that is, an employee other than an employee to whom Rule 48 applies, (viz., a servant of the Government, a railway company or local authority or a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company), 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 instalments 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 instalments, as the case may be.

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 a full statement of all the particulars of the existing attachment.

Every order made under this rule, unless it is returned in accordance with the aforesaid provisions, shall, without further notice or other process, bind the employer while the judgment-debtor is within the local limits to which this Code extends 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.

Attachment of partnership property:

Property belonging to a partnership’ shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.

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, appoint a receiver of the share of such partner in the profits, and direct accounts and inquiries and make an order for the sale of such interest.

The other partner or partners shall be at liberty to redeem the interest charged or, in the case of a sale being directed, to purchase the same. (Order XXI, Rule 49).

Negotiable Instruments:

Where the property is a negotiable instrument not deposited in a court, nor 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. (Order XXI, Rule 51).

Property in the 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 any interest or dividend becoming payable thereon, may be held subject to the further orders of the court from which notice is issued. (Order XXI, Rule 52).

Attachment of decrees:

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 of 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, requesting 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 (b) his judgment-debtor with the previous consent in writing of such decree-holder, or with the previous permission of the attaching court, applies to the court receiving such notice to execute the attached decree.

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

Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to above, 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. [Order XXI, Rule 53].

Immovable property:

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.

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.

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.

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 the court house, and 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 situated in a village, also in the office of the Gaon Panchayat, if any, having jurisdiction over that village. (Order XXI, Rule 54).

Removal of attachment after satisfaction of the decree:

Where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into court, or satisfaction of the decree is otherwise made through the court or certified to the court, or the decree is set aside or reversed, the attachment shall be deemed to be withdrawn. (Order XXI, Rule 55).

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