Sale & Attachment of Property in Execution Decree
Chapter – I
Introduction & Research Methodology
1. Introduction:
The passing of a decree by a competent court conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, thus creating substantive rights in favour of the decree-holder. However, lately it has been seen that instead of following the terms and conditions of the decree, judgment-debtors have been placing a number of obstacles in the way of a decree-holder. In fact, such a trend has become so prevalent that it has forced the Supreme Court to opine that ‘the difficulties of a litigant begin when he has obtained a decree’.
Conscious of the significance and importance of giving effect to the decree and orders passed by competent courts, the Code of Civil Procedure provides for elaborate rules for the execution of decrees. In an attempt to ensure that a decree-holder is able to realize the benefits out of the decree, the Code of Civil Procedure gives a number of modes for the execution of decrees. One of these modes of execution of decrees is the process of attachment and sale of the properties of the judgment-debtor.
Since, a decree holder does not by virtue of the judgment, get a right to the property, he cannot get the right by way of filing a suit but by attachment and sale in execution. While through the process of attachment the court informs the world that the property so ordered to be attached is “in its view” and “no existing rights and liabilities should be altered”; through the process of sale of the properties of the judgment-debtor, the Court diverts the money so collected to the decree-holder in satisfaction of his claim.
However, by its very nature property may be of different types. Therefore, a judgment-debtor may possess either movable or immovable properties, or both. Thus, keeping in regard the differing characteristics of these two types of properties, the Code of Civil Procedure prescribes different procedures for the
Introduction & Research Methodology
1. Introduction:
The passing of a decree by a competent court conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, thus creating substantive rights in favour of the decree-holder. However, lately it has been seen that instead of following the terms and conditions of the decree, judgment-debtors have been placing a number of obstacles in the way of a decree-holder. In fact, such a trend has become so prevalent that it has forced the Supreme Court to opine that ‘the difficulties of a litigant begin when he has obtained a decree’.
Conscious of the significance and importance of giving effect to the decree and orders passed by competent courts, the Code of Civil Procedure provides for elaborate rules for the execution of decrees. In an attempt to ensure that a decree-holder is able to realize the benefits out of the decree, the Code of Civil Procedure gives a number of modes for the execution of decrees. One of these modes of execution of decrees is the process of attachment and sale of the properties of the judgment-debtor.
Since, a decree holder does not by virtue of the judgment, get a right to the property, he cannot get the right by way of filing a suit but by attachment and sale in execution. While through the process of attachment the court informs the world that the property so ordered to be attached is “in its view” and “no existing rights and liabilities should be altered”; through the process of sale of the properties of the judgment-debtor, the Court diverts the money so collected to the decree-holder in satisfaction of his claim.
However, by its very nature property may be of different types. Therefore, a judgment-debtor may possess either movable or immovable properties, or both. Thus, keeping in regard the differing characteristics of these two types of properties, the Code of Civil Procedure prescribes different procedures for the
Bibliography: 1. Basu’s , ‘The Code of Civil Procedure’, Ashok Law House, New Delhi, 10th Edn., Vol.2, 2007. 2. Majumdar’s, ‘Commentary on the Code of Civil Procedure, 1908’, Orient Publishing Company, 6th Edn., Vol.1, 2010. 3. Justice Nandi & Gupta Sen, ‘The Code of Civil Procedure’, Kamal Law House, Kolkata, Vol.1, 2009. 4. Rao’s V.J., ‘The Code of Civil Procedure, 1908’, ALT Publication’s, 5th Edn., Vol.1, 2008. 6. Prasa, B.M., & Sarvaria, S.k., “Mulla The Code Of Civil Procedure”,14th Edn., Lexis Nexis ButterWorths Wadhwa,Nagpur, 2011. [2] Desh Bandhu v. N.L. Anand, (1994) 1 SCC 131. [7] AIR 1965 A.P. 52 [8] (1984) 1 SCC 137 [9] ‘Saleable’ means saleable by auction under the orders of a Court [10] (1994) 1 SCC 131