Modes of execution: arrest and detention, attachment, and sale

1. Delivery of property

• Specific movable property (Order XXI rule 31): by seizure and delivery, or by detention of the judgment-debtor, or attachment of his property, or both. If the attachment has lasted three months and the decree is not obeyed, the property may be sold and compensation paid out of the proceeds.
• Immovable property (rules 35 and 36): by delivering possession to the decree-holder, removing any person bound by the decree who refuses to vacate. Joint possession is delivered symbolically, by affixing the warrant and proclaiming by beat of drum. Where the property is with a tenant entitled to remain, delivery is symbolic.
• Specific performance, restitution of conjugal rights and injunction (rule 32): where the party has wilfully failed to obey, by detention in civil prison or attachment of property or both; a decree for restitution of conjugal rights is enforced only by attachment.
• Resistance (rules 97 to 106): if the decree-holder or auction-purchaser is obstructed, he applies to the court, which decides all questions, including title, in the execution itself (rule 101). A stranger dispossessed may likewise apply (rule 99).

2. Arrest and detention in civil prison

This is the harshest mode and the Code hedges it with conditions.

• Money decrees: the proviso to section 51. Detention may be ordered only after the judgment-debtor has been given an opportunity to show cause, and the court, for reasons recorded, is satisfied (a) that with the object of obstructing execution he is likely to abscond or has dishonestly transferred or concealed property after the suit was filed; or (b) that he has, or has had since the decree, the means to pay and refuses or neglects to pay; or (c) that the decree is for a sum he was bound to account for in a fiduciary capacity.
• Notice first (Order XXI rule 37). Instead of issuing a warrant, the court must issue a notice to show cause, unless it is satisfied that he is likely to abscond to delay execution. If he does not appear, a warrant issues. At the hearing the court decides under rule 40.
• Manner of arrest (section 55). At any hour and on any day, but no dwelling house may be entered between sunset and sunrise, and the outer door may be broken only if the judgment-debtor occupies the house and refuses access. On a money decree he is released at once if he pays the decretal amount and costs of arrest to the officer. The court must tell him he may apply to be declared an insolvent.
• Who cannot be arrested. A woman, in execution of a money decree (section 56); judicial officers, parties, pleaders and witnesses going to, attending or returning from court (section 135); members of legislatures during sessions and committee meetings (section 135A); and persons notified by the State Government under section 55(2).
• Period (section 58). Up to three months if the decree exceeds ₹5,000; up to six weeks if it exceeds ₹2,000 but not ₹5,000; and no detention at all if the total decree does not exceed ₹2,000. Release does not discharge the debt, but he cannot be re-arrested under the same decree (section 58(2)). He may also be released on the ground of serious illness (section 59).
• Subsistence allowance (section 57) must be paid by the decree-holder.

The leading case is Jolly George Varghese v. Bank of Cochin, 1980 INSC 19, (1980) 2 SCC 360. A warrant of arrest was issued against judgment-debtors without inquiry into their present means. Krishna Iyer J. read section 51 in the light of Article 21 and Article 11 of the International Covenant on Civil and Political Rights (no one to be imprisoned merely for inability to fulfil a contractual obligation). Mere failure to pay is not enough: there must be some element of bad faith, a wilful refusal despite present means. Past means alone, without present capacity, are no ground for detention.

3. Attachment: what can and cannot be attached (sections 60 and 61)

Section 60(1) makes liable to attachment and sale all saleable property, movable or immovable, belonging to the judgment-debtor, or over which he has a disposing power exercisable for his own benefit, whether held in his name or by another in trust for him: lands, houses, goods, money, bank notes, cheques, bills, hundis, promissory notes, Government securities, bonds, debts and shares. The proviso then exempts a long list. The most examined items are:

• (a) necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and personal ornaments a woman cannot part with by religious usage;
• (b) tools of artisans; and for an agriculturist, implements of husbandry, cattle and seed-grain needed to earn his livelihood, and agricultural produce exempted under section 61;
• (c) houses and buildings belonging to and occupied by an agriculturist, a labourer or a domestic servant;
• (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, a local authority or any other employer, and political pensions;
• (h) wages of labourers and domestic servants;
• (i) salary, to the extent of the first ₹1,000 and two-thirds of the remainder, except in execution of a maintenance decree; (ia) in a maintenance decree, one-third of the salary is exempt. Once the attachable part has been attached for a total of twenty-four months it is exempt for a further twelve months;
• (j) pay and allowances of persons subject to the Army, Navy and Air Force Acts;
• (k), (ka) compulsory deposits under the Provident Funds Act, 1925 and the Public Provident Fund Act, 1968; (kb) moneys payable under a life insurance policy of the judgment-debtor; (kc) a lessee's interest in a residential building under rent control law;
• (m) an expectancy of succession or other mere contingent right; (n) a right to future maintenance.

Pension and gratuity remain exempt even after they are paid out, because Explanation I says the exemption applies whether before or after the money is actually payable.

4. How attachment is made and its effect

• Movables in the judgment-debtor's possession (rule 43): by actual seizure. Debts and shares not in his possession are attached by a prohibitory order (rule 46); salary by an order to the disbursing officer (rule 48).
• Immovable property (rule 54): by an order prohibiting the judgment-debtor from transferring or charging the property and all persons from taking any benefit from such transfer, proclaimed on the property by beat of drum, affixed on it and in the court-house, and where the property is land paying revenue, in the Collector's office.
• Effect (section 64): any private transfer or delivery of the attached property, and any payment to the judgment-debtor of a debt contrary to the attachment, is void as against all claims enforceable under the attachment, including claims for rateable distribution. A transfer under a contract registered before the attachment is saved (section 64(2)). The transfer is void only against the attaching creditor, not between the parties.
• Claims by third parties (rule 58): a person claiming the attached property as his own files a claim or objection, which the executing court decides in the execution, with the same effect as a decree. No claim is entertained after the property is sold or if it was designedly delayed.

5. Sale

• General rules (rules 64 to 73). The court may order the attached property, or enough of it, to be sold (rule 64). Sale is by public auction through an officer of the court (rule 65), after a proclamation of sale stating the time and place, the property, the encumbrances and the amount to be recovered (rule 66). The decree-holder cannot bid without the court's express permission (rule 72).
• Immovable property (rules 82 to 96). The purchaser deposits 25 per cent immediately, failing which the property is resold (rule 84), and pays the balance within fifteen days (rule 85).
• Setting aside the sale. On deposit of 5 per cent of the purchase money for the purchaser and the amount in the proclamation for the decree-holder (rule 89); for material irregularity or fraud in publishing or conducting the sale, causing substantial injury (rule 90); or because the judgment-debtor had no saleable interest (rule 91). An application to set aside a sale lies within sixty days (Article 127, Limitation Act).
• Confirmation (rule 92). If no such application is made or it fails, the sale is confirmed and becomes absolute, and a sale certificate issues (rule 94). Title passes from the date of sale (section 65).
• Rateable distribution (section 73). Where several decree-holders have applied for execution of money decrees against the same judgment-debtor before the receipt of the assets, the proceeds are distributed rateably among them.

6. Problem

X obtains a money decree of ₹3 lakh against Y, a retired government clerk. Y's only assets are his monthly pension and a house he lives in. X applies for attachment of the pension and for Y's arrest. Advise the court.

Issue. Whether the pension and house are attachable, and whether Y can be detained.

Law. Section 60(1)(g) exempts pensions of Government servants, before and after payment (Explanation I). Section 60(1)(c) exempts houses only of agriculturists, labourers and domestic servants. The proviso to section 51 and Jolly George Varghese require proof of present means and wilful refusal before detention.

Application. The pension cannot be attached. Y, a retired clerk, is not an agriculturist, labourer or domestic servant, so his house is attachable and may be sold. As to arrest, the court must first issue notice under Order XXI rule 37 and inquire; if Y's only income is an exempt pension, the Explanation to section 51 requires it to be left out of account, and there is no ground of bad faith on these facts.

Conclusion. Attachment of the pension and arrest should be refused; X may proceed against the house by attachment and sale.

How this is examined

“Explain various modes of execution of decree” was set in both June 2025 and February 2025: answer with section 51 and sections 1, 2, 4 and 5 above. “What is attachment? Explain the properties which are not liable for attachment and sale in execution of a decree” (January 2026) needs sections 3 and 4, with section 60 listed clause by clause. Problems usually concern pension, salary or a woman judgment-debtor.