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A Glimpse of the Code of Civil Procedure, 1908, Part II

Attachment

Section 60 Property liable to attachment and sale in execution of decree: Property that is liable to attachment and sale in execution of a decree includes lands, houses/other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in corporation and except mentioned otherwise all other saleable movable/immovable property belonging to the judgment-debtor over which he has a disposing power where the property is held in his name or in trust for him/his behalf. 

Following particulars shall not be liable to such attachment or sale, namely:— 

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the government or of a local authority or of any other employer or payable out of any service pension fund notified in the Official Gazette by the Central Government or the State government in this behalf, and political pension;

(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first four hundred rupees and two third of the remainder in execution of any decree other than a decree for maintenance. Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion sail be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree.

(ia) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act,1957, applies;

(k) all compulsory deposits and other sums in or derived from and fund to which the Provident funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 for the time being applies in so far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment-debtor;

(kc) the interest of a lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;

(l) any allowance forming part of the emoluments of any servant of the Government or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest; (n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land-revenue; any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrears of such revenue.

Explanation I.— The moneys payable in relation to the matters mentioned in clauses (g), (h), (i), (ia), (j), (1) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.

Explanation II.— In clauses (1) and (ia)], "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1) derived by a person from his employment whether on duty or on leave.

Explanation III—In Clause (l), "appropriate Government" means— (i) as respect 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, the Central Government; (ii) as respects any other servant of the Government or a servant of any other local authority skilled the State Government.

Explanation IV.—For the purposes of this proviso, "wages", includes bonus, and labourer" includes a skilled/unskilled or semi-skilled labourer.

Explanation V.—For the purposes of this proviso, the expression "agriculturist" means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.

Explanation VI.—For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land— (a) by his own labour, or (b) by the labour of any member of his family, or (c) by servants or labourers on wages payable in case or in kind (not being as a share of the produce), or both.

(1A) Even if in any other law something else is stated an agreement by which a person agrees to waive the benefit on any exemption under this section shall be void.

(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land. 

Section 61 Partial exemption of agricultural produce: The State Government may declare that such portion of agricultural produce, or any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in exaction of a decree. 

Section 62 Seizure of property in dwelling-house: (1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house after sunset and before sunrise. (2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be. (3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal. 

63. Property attached in execution of decrees of several Courts— (1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached. (2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees. 

Order XXVI – Commissions
Court may, for reasons to be recorded, in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within local limits of its jurisdiction and who is exempted under CPC from attending the Court or who is for sickness/infirmity unable to attend it. Certificate signed by a registered medical practitioner is accepted as evidence of the sickness/infirmity without calling the medical practitioner as a witness. Court may order for issue of a commission for examination of a witness of its own or on application of any party/witness to the suit. Where witness resides within Court's jurisdiction a commission may be issued as Court thinks fit to execute it. Court may, for reasons to be recorded, in any suit issue a commission for the examination on interrogatories of any person i) resident beyond Court’s jurisdiction or ii) who is about to leave Court’s jurisdiction before the date of examination in Court or iii) in Government service who cannot attend without detriment to the public service. Where a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is necessary in the interests of justice. Such commission may be issued to any Court other than a High Court who is resident in its jurisdiction or to appointed pleader/other person. On application Court may issue a commission or a letter of request for examination of a person residing outside India where Court is satisfied that the evidence of such person is necessary. Every Court receiving a commission for the examination of any person shall examine him. Every commission with depositions of witnesses shall be returned to the Court of its issue and it shall form part of the record of the suit. Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered unless— (a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead/unable to attend to be personally examined, or exempted from personal appearance in Court or is a person in the Government service who cannot attend without detriment to the public service, or (b) the Court in its discretion dispenses with the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit. In any suit in which the Court deems a local investigation to be requisite/proper for clear understanding any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as per Rule prescribed by State Government directing him to make such investigation and to report thereon to the Court. After local inspection Commissioner shall report in writing together with evidence taken by him to the Court. The report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Court/parties to suit may examine the Commissioner personally in open Court on matters mentioned in his report, or as to the manner in which he has made the investigation. Where Court is not satisfied with the proceedings of the Commissioner, it may direct further inquiry to be made. Where any question arising in a suit involves any scientific investigation Court may, where it is necessary/expedient in the interests of justice, issue a commission directing to inquire into such question and report thereon to the Court in the same manner as is done in other cases. Where any question arising in a suit involves performance of any ministerial act Court may, where it is necessary/expedient in the interests of justice, issue a commission directing to perform that ministerial act and report thereon to the Court in the same manner as is done in other cases. Where in any suit, it becomes necessary to sell any movable property which is in the custody of the Court till the pendency of the suit and which cannot be conveniently preserved, the Court may, where it is necessary/expedient in the interests of justice so to do, issue a commission directing to conduct sale and report thereon to the Court. Where in any suit an examination/adjustment of the accounts is necessary, the Court may issue a commission directing to make such examination/adjustment. Court shall furnish the Commissioner with such part of the proceedings and necessary instructions distinctly specifying whether he is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination. The proceedings and report of the Commissioner shall be evidence in the suit, but where the Court is not satisfied with them, Court may direct such further inquiry to be made. Where a preliminary decree for partition (of immovable property) has been passed, the Court may issue a commission to make the partition or separation according to the rights as declared in such decree. The Commissioner shall after inquiry divide the property into shares and allot such shares to the parties as directed by the order under which the commission was issued and may if authorised by the said order, award sums for equalizing the value of the shares. The commissioner shall prepare and sign a report or separate reports (where the commission was issued to more than one person and they cannot agree) appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report/reports shall be annexed to the commission and transmitted to Court. Court, after hearing any objections which the parties may make to the report/reports, shall confirm, vary or set aside the same. Where Court confirms or varies the report/reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report/reports it shall either issue a new commission or make such other order as it shall think fit. Before issuing any commission Court may order sum for the reasonable expenses of the commission be paid into Court by the party at whose instance or for whose benefit the commission is issued. Power of Commissioners to examine the parties and any witness whom they may produce and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him and call for and examine documents and other things relevant to the subject of inquiry and at any reasonable time enter into any land/building mentioned in the order. Where any question put to a witness is objected to by a party/his pleader in proceedings before a Commissioner, the Commissioner shall take down the question, the answer, the objections and the name of the party/the pleader so objecting. But if the question is of privilege then it to be decided by the Court. Where Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him. No answer shall be read was evidence in the suit except by the order of the Court. The provisions of CPC relating to summoning, attendance and examination of witnesses, remuneration and penalties to be imposed upon witnesses shall apply to persons required to give evidence/produce documents whether the commission has been issued by a Court situate within or by a Court situate beyond the limits of India, and the Commissioner shall be deemed to be a Civil Court. The Commissioner shall not impose penalties if he is not a Judge of a Civil Court but such penalties may be imposed on the application of such Commissioner by Court by which the commission was issued. A Commissioner may apply to any Court, other than a High Court, within the local limits on whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper. Where a commission is issued Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders. Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

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