Attachment of Property
41. Examination of judgmentdebtor
as to his property. Where a decree is for the payment of
money the decreeholder
may apply to the Court for an order that ___
(a) the judgmentdebtor,
or
(b) in the case of a corporation, any officer thereof, or
(c) any other person,
be orally examined as to whether any or what debts are owing to the judgmentdebtor
and whether
the judgmentdebtor
has any and what other property or means of satisfying the decree ; and the Court
may make an order for the attendance and examination of such judgmentdebtor,
or officer or other
person, and for the production of any books or documents.
42. Attachment in case of decree for rent or mesne profits or other matter, amount of which
to be subsequently determined. Where a decree directs an inquiry as to rent or mesne profits or any
other matter, the property of the judgmentdebtor
may, before the amount due from him has been
ascertained, be attached, as in the case of an ordinary decree for the payment of money.
43. Attachment of moveable property other than agricultural produce, in possession of
judgmentdebtor.
Where the property to be attached is movable property, other than agricultural
produce, in the possession of the judgmentdebtor,
the attachment shall be made by actual seizure, and
the attaching officer shall keep the property in his own custody or in the custody of one of his
subordinates, and shall be responsible for the due custody thereof :
Provided that, when the property seized is subject to speedy and natural decay, or when the
expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.
44. Attachment of agricultural produce. Where the property to be attached is agricultural
produce, the attachment shall be made by affixing a copy of the warrant of attachment,___
(a) where such produce is a growing crop, on the land on which such crop has grown, or
Code of Civil Procedure, 1908 [1908 : V]
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(b) where such produce has been cut or gathered, on the threshingfloor
or place for treading
out grain or the like or fodderstack
on or in which it is deposited,
and another copy on the outer door or on some other conspicuous part of the house in which the
judgmentdebtor
ordinarily resides or, with the leave of the Court, on the outer door or on some other
conspicuous part of the house in which he carries on business or personally works for gain or in which
he is known to have last resided or carried on business or personally worked for gain ; and the produce
shall thereupon be deemed to have passed into the possession of the Court.
45. Provisions as to agricultural produce under attachment.__(1) Where agricultural produce is
attached, the Court shall make such arrangements for the custody thereof as it may deem sufficient
and, for the purpose of enabling the Court to make such arrangements, every application for the
attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.
(2) Subject to such conditions as may be imposed by the Court in this behalf either in the order of
attachment or in any subsequent order, the judgmentdebtor
may tend, cut, gather and store the
produce and to any other act necessary for maturing or preserving it; and if the judgmentdebtor
fails to
do all or any of such acts, the decreeholder
may, with the permission of the Court and subject to the
like conditions, do all or any of them either by himself or by any person appointed by him in this
behalf, and the costs incurred by the decreeholder
shall be recoverable from the judgmentdebtor
as if
they were included in, or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be
under attachment or to require reattachment
merely because it has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been made at a considerable time
before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the
order for such time as it thinks fit, and may, in its discretion make a further order prohibiting the
removal of the crop pending the execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being stored shall not be attached
under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut
or gathered.
46. Attachment of debt, share and other property not in possession of judgment debtor.__ (1)
In the case of __
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation,
(c) other moveable property not in the possession of the judgmentdebtor,
except property
deposited in, or in the custody of, any Court,
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 thereon;
(iii) in the case of the other moveable property except as aforesaid, the person in possession of
the same from giving it over to the judgmentdebtor.
(2) A copy of such order shall be affixed on some conspicuous part of the courthouse
and another
copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of
the corporation, and, in the case of the other movable property (except as aforesaid), to the person in
possession of the same.
(3) A debtor prohibited under clause (i) of subrule
(1) may pay the amount of his debt into Court,
and such payment shall discharge him as effectually as payment to the party entitled to receive the
same.
47. Attachment of share in moveables. Where the property to be attached consists of the share or
interest of the judgmentdebtor
in moveable property belonging to him and another as coowners,
the
attachment shall be made by a notice to the judgmentdebtor
prohibiting him from transferring the
share or interest or charging it in any way.
48 Attachment of salary or allowances of public officer or servant of railway company or
local authority.__(1) Where the property to be attached is the salary or allowance of a 1[servant of the
State] or of a servant of a company or local authority, the Court, whether the judgmentdebtor
or the
disbursing officer is or is not 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 officer as2[the appropriate Government may by notification in the official Gazette] appoint 3[in
this behalf,__
(a) where such salary or allowances are to be disbursed within the local limits to which this
Code for the time being extends, the officer or other person whose duty it is to disburse the
same shall withhold and remit to the Court the amount due under the order, or the monthly
installments, as the case may be;
(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or
other person within those limits whose duty it is to instruct the disbursing authority
regarding the amount of the salary or allowances to be disbursed shall remit to the Court
the amount due under the order, or the monthly installments, as the case may be, and shall
direct the disbursing authority to reduce the aggregate of the amounts from time to time be
disbursed by the aggregate of the amounts from time to time remitted to the Court.]
1The original words “public officer” were first subs. by the Code of Civil Procedure (Amdt.) Act, 1943, (5 of 1943) s.3, and then amended by A.O. , 1961, Art. 2 and Sch. (with effect from
the 23rd March, 1956), to read as above.
2Subs. by the Repealing and Amending Act, 1942 (25 of 1942), s. 3 and Second Sch., for “the Central Governemnt or the Provincial Governemnt may by notification in their official Gazette”
which had been subs., by A.O., 1937, for “the Govt. may by notification in the Gazette of India or in the local official Gazette, as the case may be.”
3Subs. by the Code of Civil Procedure (Amdt.) Act, 1939 (26 of 1939), s.2, for certain words.
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(2) Where the attachable proportion of such salary or allowances is already being withheld and
remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer
appointed by 1[the appropriate Government] in this behalf shall forthwith return the subsequent order
to the Court issuing it with a full statement of all the particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in accordance with the provisions of subrule
(2), shall, without further notice or other process, bind 2[the appropriate Government] or the
railway company or local authority, as the case may be, while the judgment debtor is within the local
limits to which this Code for the time being extends and while he is beyond those limits if he is in
receipt of any salary or allowances payable out of 3[the revenues of the 4[Federal Government] or a
Provincial Government] or the funds of a railway company carrying on business in any part of
5[Pakistan] or local authority in 5[Pakistan]; and 2[the appropriate Government] or the railway
company or local authority, as the case may be, shall be liable for any sum paid in contravention of this
rule.
6[Explanation. __ In this rule "appropriate Government" means __
(i) as respects any 7[person] in the service of the 4[Federal Government], or any servant 8* * *
of a cantonment authority or of the port authority of a major port, the
4[Federal Government];
9* * * * * * *
(iii) as respects any other 10[Servant of the Stat]e or a servant of any 11*railway or local
authority, the Provincial Government.]
1Subs. by Act 25 of 1942, for “the Central or the Provincial Govt., as the case maybe” which were subs. by A.O., 1937, for “the Gvot.”.
2.Subs. by the Repealing and Amending Act, 1942 (25 of 1942), for “the Central Government or the Provincial Government” which was subs. by A.O., 1937, for “the Government”
3Subs. by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March 1956) for “His Majesty’s [Pakistan Revenues]”. The words in crotchets were subs. by A.O., 1949, for “Indian
revenues”.
4Subs. by F.A.O., 1975, Art. 2 and Table, for “Central Government”.
5 Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14th October, 1955), for "the Provinces and the Capital of the Federataion"
which had been subs. by A.O., 1949, for “British India”.
6 Explanation added by Act 25 of 1942, s.3 and Second Sch.
7Subs. by the Code of Civil Procedure (Amdt.) Act, 1943 (5 of 1943) s.3, for “public officer”.
8The words “of a* Railway or” omitted by A.O., 1964, Art. 2 and Sch. The asterisk denotes the omission of “Federal” by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956).
9Cl. (ii) omitted by A.O., 1949.
10The original words “public officer” were first subs. by Act 5 of 1943, s.3 and then amended by A.O., 1961, Art. 2 and Sch. (with effect from the 23rd March, 1956), to read as above.
11The word “other” omitted by A.O., 1964, Art. 2 and Sch.
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49. Attachment of partnership property.__(1) Save as otherwise provided by this rule, 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.
(2) 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 with payment of the
amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the
share of such partner in the profits (whether already declared or accruing) and of any other money
which may be coming to him in respect of the partnership, and direct accounts and inquiries and make
an order for the sale of such interest or other orders as might have been directed or made if a charge
had been made in favour of the decreeholder
by such partner, or as the circumstances of the case may
require.
(3) The other partner or partners shall be at liberty at any time to redeem the interest charged, or, in
the case of a sale being directed, to purchase the same.
(4) Every application for an order under subrule
(2) shall be served on the judgmentdebtor
and on
his partners or such of them as are within1[Pakistan].
(5)Every application made by any partner of the judgmentdebtor
under subrule
(3) shall be
served on the decreeholder
and on the judgmentdebtor,
and on such of the other partners as do not
join in the application and as are within 1[Pakistan].
(6) Service under subrule
(4) or subrule
(5) shall be deemed to be service on all the partners, and
all orders made on such applications shall be similarly served.
50. Execution of decree against firm.__ (1) Where a decree has been passed against a firm,
execution may be granted __
(a) against any property of the partnership;
(b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX
or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner ;
(c) against any person who has been individually served as a partner with a summons and has
failed to appear:
Provided that nothing in this subrule
shall be deemed to limit or otherwise affect the provisions of
section 247 of the Contract Act, 1872 (IX of 1872).
(2) Where the decreeholder
claims to be entitled to cause the decree to be executed against any
person other than such a person as is referred to in subrule
(1), clauses (b) and (c), as being a partner
in the firm, he may apply to the Court which passed the decree for leave, and
1Subs. by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1960), s.3 and 2nd Sch. (with effect from the 14 October, 1955), for “the Province and the Capital of the Federation”
which had been subs. by A.O, 1949, for “British India”.
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where the liability is not disputed, such Court may grant such leave, or, where such liability is
disputed, may order that the liability of such person be tried and determined in any manner in which
any issue in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined under subrule
(2), the order
made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise
as if it were a decree.
(4) Save as against any property of the partnerships, a decree against a firm shall not release,
render liable or otherwise affect any partner therein unless he has been served with a summons to
appear and answer.
51. Attachment of 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.
52. Attachment of property in 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 the notice is issued :
Provided that, where such property is in the custody of a Court, any question of title or priority
arising between the decreeholder,
and any other person, not being the judgmentdebtor;
claiming to be
interested in such property by virtue of any assignment, attachment or otherwise, shall be determined
by such Court.
53. Attachment of decrees.__ (1) 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) the holder of the decree sought to be executed or his judgmentdebtor
applies to the
Court receiving such notice to execute its own decree.
(2) Where a Court makes an order under clause (a) of subrule
(1), or receives an application under
subhead
(ii) of clause (b) of the said subrule,
it shall, on the application of the
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creditor who has attached the decree or his judgmentdebtor,
proceed to execute the attached
decree and apply the net proceeds in satisfaction of the decree sought to be executed.
(3) The holder of a decree sought to be executed by the attachment of another decree of the nature
specified in subrule
(1) shall be deemed to be the representative of the holder of the attached decree
and to be entitled to execute such attached decree in any manner lawful for the holder thereof.
(4) Where the property to be attached in the execution of a decree is a decree other than a decree
of the nature referred to in subrule
(1), 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.
(5) The holder of a decree attached under this rule shall give the Court executing the decree such
information and aid as may reasonably be required.
(6) On the application of the holder of a decree sought to be executed by the attachment of another
decree, the Court making an order of attachment under this rule shall give notice of such order to the
judgmentdebtor
bound by the decree attached; and no payment or adjustment of the attached decree
made by the judgmentdebtor
in contravention of such order after receipt of notice thereof, either
through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in
force.
54. Attachment of immoveable property.__ (1) Where the property is immoveable, the
attachment shall be made by an order prohibiting the judgmentdebtor
from transferring or charging the
property in any way, and all persons from taking any benefit from such transfer or charge.
(2) 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 then upon a conspicuous part of the courthouse,
and also, 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.
55. Removal of attachment after satisfaction of decree. Where(
a) the amount decreed with costs and all charges and expenses resulting from the attachment
of any property are paid into Court, or
(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or
(c) the decree is set aside or reversed,
Code of Civil Procedure, 1908 [1908 : V]
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the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the
withdrawal shall, if the judgmentdebtor
so desires, be proclaimed at his expense, and a copy of the
proclamation shall be affixed in the manner prescribed by the last preceding rule.
56. Order for payment of coin or currency notes to party entitled under decree. Where the
property attached is current coin or currency notes, the court may, at any time during the continuance
of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be
paid over to the party entitled under the decree to receive the same.
57. Determination of attachment. Where any property has been attached in execution of a decree
but by reason of the decreeholder's
default the Court is unable to proceed further with the application
for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings
to a future date. Upon the dismissal of such application the attachment shall cease.