In What Circumstances Can The Property Of Defendant Be attached Before Judgement?


The person who suffers any kind of damage or suffering due to the negligent act or wrongful act of the other can institute a civil suit. Civil suits are instituted in order to get compensation and to return the plaintiff to his / her original position where no such harm occurred to him/her. Usually, in a civil suit, the court grants compensation in monetary terms wherein a criminal suits punishment is granted to the defendant if proven guilty.

Hence a civil suit can be brought regarding breach of contract, violation of lease agreements, residential disputes, land disputes and many others such matters where the court grants compensation to the plaintiff against the defendant, if proven guilty.

Every civil suit comprises of 3 stages:

  1. Institution of a suit.
  2. Adjudication of a suit.
  3. Implementation of a suit.

Each and every stage has to be followed specifically. The last step, i.e. implementation of a suit, is a step where the result of the previous step (adjudication of a suit) is put into action. Hence, the last step is also known as an execution. In this stage, the order of the judgment is implemented and is given immediate effect.

Section 38 of CPC[1] states of who has the ultimate authority to execute the decree.

  • A decree may be executed either by the court which passed the order, or
  • By the Court to which it is sent for execution.

Section 37[2] gives further explanation of certain expressions.

The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to some conditions and limitations.

Section 51 of CPC[3] provides the following modes of execution of decrees subject to such conditions and limitations as may be prescribed.

(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property;

(c) By arrest and detention in prison for such period not exceeding the period;

(d) In such other manner as the nature of the relief granted may require.

“Attachment of property” is one of the various modes of execution used by the court of justice. An executing court which possesses the authority under Sec 38 of CPC[4] is competent to attach the property if it is situated within the jurisdiction of the court. The place where a judgement debtor carries out his business is not relevant and does not affect the course of execution.

Also Read – Stages of Civil Suit Under Civil Procedure Code, 1908

Attachment of property is one of the many modes that the court uses in order to compensate the plaintiff in a civil suit. In a case where the wrongdoer fails to compensate the plaintiff in terms of monetary relief, the courts implement the execution of property, either movable or immovable. The court, in the execution of the order, passed can attach the property of the defendant and compensates the plaintiff which is due. However, there are certain assets that cannot be attached in an execution decree to recover the due amount.

In the case of V. Dharmavenamma v. C. Subrahmanyam Mandadi[5], the court held that:

“The right to choose the mode of execution is available to the plaintiff, and it is in his/ her hand to decide the mode of execution that he/ she is willing to use to recover the due from the defendant.”

Section 60 and Section 64and Rules 41 to 57 of Order 21 of CPC, 1908[6], deal with the matter of attachment of property.

Further, Section 60 CPC,1908[7] describes the property which can and cannot be attached while execution of the decree.

Several types of properties like land, bills of exchange, goods, money, securities, bonds, etc. who has a disposing power and belongs to the defendant whereas mortgage land, books of accounts, utensils, vessels, beds or loan amount or any other right of personal service belonging of the defendant that does not has a disposing power cannot be attached while execution of the decree.

Rule 43 to 54 of Order 21 lays down the procedure that is to be followed for attachment of movable and immovable property.

Attachment of a property is the most initial step in the process of execution or implementation of the adjudication order and further, the sale of the property will be carried out after the process of attachment. Sometimes, the sale can be proceeded with, without an attachment of the property as well. This does not make the sale irregular in nature or scope. But naturally, the correct procedure to be followed is attachment followed by the sale of the property.

The circumstance in which the attachment of the property takes when:

  • Either the judgment-creditor decides this particular mode of execution.
  • Or when the judgment-debtor is unable to clear the due that he/ she owes to the plaintiff in the mode that the court used while execution and as aftereffect the court orders attachment of property.

Hence, the power to choose the mode of execution is always in the hand of the plaintiff when the defendant if proven guilty.


[1]Civil Procedure Code, 1908, S. 38.

[2]Civil Procedure Code, 1908, S. 37.

[3]Civil Procedure Code, 1908, S. 57.

[4]Civil Procedure Code, 1908, S. 38.

[5]V. Dharmavenamma v. C Subrahmanyam Mandadi, (2009) S.C.C 966.

[6] Civil Procedure Code, 1908, S.60-64, Order 21.

[7]Civil Procedure Code, 1908, S. 60.

This Article Written by Tulika Tripathi, Student of Lloyd Law College.

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