Attachment can be made either before or after pronouncing the decree. Order 21 of the Code of Civil Procedure, 1908 (“CPC”) deals with attachment in execution of decrees. However, Order 39, CPC can also be used; it deals with temporary injunctions. Order 38 and Section 136 CPC deal with the attachment of properties before a decree is passed.
Before a decree is passed, properties may be attached either under Order 38 or frozen under Order 39. The procedure for attachment of properties otherwise than in execution of decree is governed by Section 136. Two salient features of S. 136 are:
However, no such provision allowing attachment of properties outside the jurisdiction has been made in respect of execution of decrees. That is to say, the Legislature made its intention clear by allowing extra-territorial attachment only during the pendency of the suit, and not in the execution of a decree. The power to attach a property pending the final adjudication of the suit is only to restrain the adverse party from possibly alienating or disposing of its assets or the suit property. Since the said purpose has a sense of urgency to it, the Legislature provided the Courts with an extraordinary power of attachment beyond their jurisdiction to ensure that the cause of the party applying for attachment is not defeated.
A similar relief in the nature of restraint is also made available by Order 39 which provides for temporary injunctions. It empowers the Court to issue restraining orders against the adverse party restraining it from alienating or disposing of the concerned property, provided that the grounds stated in r. 1 are satisfied. The Court can also, under r. 6, order sale of any moveable property provided that it is subject to speedy and natural decay, or for any other ‘just and sufficient’ cause which makes its immediate sale desirable. Rule 7 empowers the Court to, inter alia, order detention in court of any suit property. Rule 10 empowers the Court to order deposit of money in court in a money suit. Each of these reliefs are of a temporary nature, intended to prevent mala fide disposition of the suit property.
Section 38 states that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. Section 39(1) provides for the transfer of decree. There are four grounds on which a decree can be transferred by the Court which passed it:
It must be noted that subsection (1) uses the word “may”, vesting the Court with a discretion to either execute the decree itself or transfer it to another Court on the grounds stated therein. However, this discretion was curtailed with the introduction of subsection (4) which reads:
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.
That is to say, the court which passed the decree cannot execute it against such properties which are outside its territorial jurisdiction.
Where the property in respect of which a decree is to be executed is an immovable property and is situated within the territorial limits of two or more courts, then Order XXI r. 3 provides that any one of such Courts can attach and sell the entire property. That is to say, the executing Court can attach immovable property lying beyond its jurisdiction only if some part of it is within the local limits of jurisdiction of the executing Court.
A question arose as to whether S. 39(4) prohibits the executing court from executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order XXI Rule 3 and Order XXI Rule 48 (attachment of salary and allowances of govt. officers). This was answered by the Supreme Court in the negative. The Court held: