CIVIL PROCEDURE CODE II

TOPIC: SECOND APPEAL AND REVISION UNDER CIVIL PROCEDURE CODE 1908

Submitted to:- Mr. Amit Pratap Singh

Assistant Professor

Submitted by:- Hrishika Netam

2017B.A.LL.B53
 Acknowledgement

Our vocabulary falls short on words to express our hearty gratitude towards our
Criminal law professor Mr. Amit Pratap Sir who gave us the opportunity to work upon such an
astonishing project which helped us in enhancing our thinking skills .
we want to take out this moment to lastly (but certainly not the least) thank our parents and
The Almighty under whose blessings we were able to conclude this project. We acknowledge the
support of all the aforesaid and start with our project.

Thank You.
 TABLE OF CONTENT

1. INTRODUCTION
2. STATEMENT OF PROBLEM
3. HYPOTHESIS
4. RESEARCH QUESTION
5. AIM OF THE STUDY
6. RESEARCH METHODOLOGY
7. REVIEW LITERATURE
8. DECREE
9. TYPES OF DECREE
10.ATTACHMENT OF DECREE
11.ORDER XXI
12.RELEVENT CASE LAWS
13.ATTACHMENT OF PROPERTY
14.PROCEDURE OF ATTACHMENT
15.CONCLUSION
16.BIBLIOGRAPHY
INTRODUCTION:- Under civil procedure code, there have been numerous styles of attachment were created.
The attachment of movable property and immobile property were created. just in case of decree from a court,
the court could need litigator to pay any total to decree holder. just in case the litigator fails to try to to therefore
the court will, in execution of its decree attach the movable and immobile properties of the litigator and recover
the quantity due by disposal of those assets. The attachment of properties [ movable and immovable property]
were explained beneath section sixty to sixty-four,order XXI Rules forty one to fifty four of Civil Procedure
Code 1908. Under the Code of Civil Procedure, there have been numerous styles of attachment created. There
are attachment of movable property and immobile property; just in case of decree from a court, the court could
need litigator to pay any total to decree holder; just in case the litigator fails to try to therefore the court will, in
execution of its decree attach the movable and immobile properties of the litigator and recover the quantity due
by disposal of the assets. A decree is one amongst the foremost offtimes detected terms in Civil Matters. The
judgment of a court of law is split into decree and orders. during this article, are aiming to discuss the decree.
Under these rules, I even have to elucidate concerning the ORDER twenty one RULE forty two i.e.
``ATTACHMENT OF DECREE”.
In case of a decree from a Court, the Court may require any person (known as the defendant) to pay any sum to
the decree holder (or the plaintiff). In case the defendant fails to do so the Court can, in execution of its decree,
attach the movable and immovable properties of the defendant and recover the amount due by disposal of these
assets.
The attachment of properties [movable and immovable] have been explained beneath section sixty to sixty-four
and ORDER XXI RULES forty-one to fifty-four of Civil Procedure Code 1908.
Attachment of property is one of the modes of execution applied by the court of justice. An executing court is
competent to attach the property if it is situated within the jurisdiction of the court.A decree is one amongst the
foremost offtimes detected terms in Civil Matters.
Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree, the court may
require a person(defendant) to pay an amount to the decree-holder. In cases where the defendant fails to pay the
required sum, the court can, in the execution of its decree, attach the movable and immovable property of the
defendant and recover the amount which is due by the disposal of these assets. However, there are some assets
which cannot be attached to recover the due amount.
The judgment of a court of law is split into decree and orders. during this article, the aim is to discuss the
various modes of attaching of property under a decree.

STATEMENT OF PROBLEM:- Civil Procedural Code 1908, so as to analyse the characteristic of

attachment of decree or assumptions related to the decree. The provisions of attachment of decree is
bifurcated in different heads , the nature of Civil Procedure Code is to consolidateand amend the laws relating
to the procedure and practices followed in the civil courts in India.

HYPOTHESIS:-
The researcher has made following hypothesis:
1. Properties of all kind can be attached by the court

Research Question :-
1.Identifying the property that can be attached and that can not be attached by the court at the time of
execution

2.To study the procedure of attachment of decree

AIM OF THE STUDY:

• To realize the ``Attachment of decree” beneath the Civil procedure code 1908.
• And however the attachment wherever created and what's going to be other and what don't seem
to be to be other within the attachment of decree.
• To understand that however this attachment were helps in cases.

RESEARCH METHODOLOGY:
The analysis during this project is data-based methodology that is predicated on the study of case laws, articles
and different resources on the involved subject
• Textual information
• Article information

REVIEW OF LITERATURE:
For the aim of analysis on this subject, facilitate of assorted articles and publications of students has been taken.
Moreover, reliance has been placed on the book authorised by C.K TAKWANI whereby the construct of code
of civil procedure are dealt consistently and explained with the assistance of the illustrations and case laws.

A. DECREE: SECTION 2(2) OF CPC

One of the words most commonly encountered in civil matters is a decree. The court of law's adjudication is spl
it into decrees and orders. Under section 2(2) of the Code of Civil Procedure,1908, the word 'decree' has been
established. The declaration is a formal expression of adjudication by which the court decides the interests of
the parties in conflict or disagreement with respect to the matter. Decree suggests that a proper expression of
judgment that as regards to court expressing it once and for all determinates the rights of the parties with
reference to all or any of the matters in contention in a very suit and which can be either preliminary or final. 1
Essentials of decree,
➢ It may be a formal expression of a judgment.

➢ There should be conclusive determination of the rights of the parties.( rights i.e substantial and
procedural rights)

➢ This essential should embrace that,

Rejection of plaint [order seven; rule 11] Determination of any question at intervals section one hundred forty-
four it doesn't embody the following:
1. Any judgement from that associate charm lies as associate charm from associate order

2. Any order of dismissal for default.

 Types of decree;

1. Preliminary decree

It is a preliminary decree once the court decides on all the matters regarding the parties to a suit, however yet,
doesn't get rid of the suit. This notably happens once it's essential for the judgement to adjudicate on sure
matters of the suit before selecting the remainder.
The courts impose a preliminary decree usually when the court needs to adjudicate on the parties' rights and
then place the matter on hold before the final decree of that suit is passed.

A preliminary decree, as held in the case of Mool Chand v. Director2, Consolidation, is only a stage in which the
rights of the parties are defined before the matter is eventually resolved by the Court and adjudicated by a final
decree.
In the case of Shankar v. Chandrakant3, the Supreme Court held that the preliminary declaration is a judgement
specifying the parties' rights and liabilities but leaving the final outcome to be determined in further
proceedings.

1
Section 2 (2) of civil procedure code
2
1995AIR10214
3
1995AIR1211
In the case of Phoolchand v. Gopal Lal4, the Supreme Court held that nothing in the Code of Civil Procedure
forbids the passing of more than one preliminary decree where the circumstances so require, or where the Court
so orders. However, it should be noted that the Court of Justice released this opinion with respect to partition
suits.

2. Final decree

When the suit is totally disposed of by the decree to date as a separate judgment by a court is uncalled for, it's
known as a final decree. All the issues, controversies and variations between the parties to a suit area unit fully
resolved by the passing of a final decree.

3. Partly preliminary and partly final decree.

When sure problems current within the causa square measure resolved however sure others square measure left
for future judgment, such decree is named part preliminary and part final.
as an example, a decree for possession and mesne profits is preliminary for mesne profits however final with
regards to possession.

Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him while B
claims that the said property belongs to him. After hearing all the arguments, the court will rule in the favour of
either A or B. The final decision of the court regarding the above claim i.e. whether the property belongs to A or
B, is a decree.

B. ATTACHMENT:

Attachment may be a legal method and it's a writ seizing specific property. it's used each as a pre -trial provision
remedy and to enforce a final judgement.
The court will order the someone to connect specific property in hand by him to be transferred to the soul, for
the good thing about soil and decree holder is ``Dominus litis”( person to whom the suit belongs) and he/ she
has the proper to settle on the mode of execution from those obtainable to him.

4
1967AIR1470
Neither the court nor the judgement will force or persuade him to settle on a selected mode of execution. It was
referred from the landmark case of“Dharmavenamma V. C. SubramaniyamMandadi”5.
A provisional technique is attachment. Until a definitive judgement is made, the property is confiscated. If the
court rules in favour of the defendant, the seizure can prove unwarranted. The attachment to the complainant
can be used as a form of provisional remedy. Often, under these conditions, real estate, cars, and bank accounts
are confiscated. When there is a reasonable possibility that the plaintiff will win the case and a high likelihood
that the defendant will flee and not pay a court-ordained settlement, a judge will seize that land.

A judge may, for instance, order a defendant's bank assets to be confiscated to prevent them from moving them
to offshore accounts or block other attempts to shift land ownership beyond the jurisdiction of the court. To
prevent a complainant from alleging it in court, a defendant may attempt to sell their land.

In diverse types of civil cases, attachments come into play. Contentious divorce proceedings may raise concerns
that one party may attempt to remove from the court's jurisdiction their properties. Defendants charged with
fraud may try to transfer ownership or control of their properties in order to leave no way for complainants to
find relief.
The use of the attachment emerged as a way of forcing a defendant to appear in court and respond to the
charges brought against him. Since then, the process has been extended to give claimants a provisional relief
and as a jurisdictional predicate. Based on such factors as the defendant doing business in the state, the
defendant being a resident of the state, or the commission of unlawful acts in the state, a court may use
attachments to seize property, such as real estate or automobiles.
The attachment also needs a hearing and other processes to be followed before the court can seize the assets or
property. If real estate or other property in the state is the only legal link the defendant has to the state where the
case will be heard, the jurisdiction of the court may also be limited. In such conditions, the court could only
give an award to the plaintiff up to the value of the property in the state. If the attachment appears to be
unnecessary, the court must pay a bond to the defendant to cover any costs suffered by the arrest.
ATTACHMENT OF DECREE:
• Rule forty-two order XXI of code of civil procedure,1908.

• ``Attachment just in case of decree for rent or mesne profit or different matter quantity of that to
be later on determined”. 6

5
2007(3) ALD 169
6
Order 21 rule 42 of civil procedure code.
 • Where a decree directs AN inquiry on rent or mesne profit or the other matter, the property of the
judgement someone could, before the quantity due from him has been discovered, be hooked up, as
within the case of a normal decree for the payment of cash.

• ``Attachment once preliminary decree and before final decree” wherever the attachment is
wanted passing of the preliminary decree and before final decree, such attachment is roofed by order
XXI rule forty two except for order thirty eight rule five of Civil Procedure Code. This was explained in
“OuesphSakaria V. Cherian Joseph”7.

• Under Section 152 of the CPC, any clerical errors with regards to decrees are often corrected by
the courts themselves or on application by the plaintiffs. However, in keeping with Section 153, the
courts have a general power to amend, and may, at any time, because it deems match, amend any error
or defect continuing during a suit.

• The corrections that the courts are unit entitled to create are unit solely regarding accidental
omissions or clerical errors and not alternative errors that are caused because of gross negligence or
mistake.But before such a move, the court should be happy and it should be with validity, evidenced that
such a blunder was one thing no over an arithmetic error or a clerical mistake and zip that changes or
alters the terribly functioning of the suit or nothing that's done underneath malice.

Order 21 of the Code of Civil Procedure deals with the solemnity of such proceedings.
Act of execution of the decrees handed down from the grassroots to the courts TOP. After the decision achieves
finality or where there is no stay, finally, The Court of Appeal or of Review shall be the Court of Appeal in the
execution of any Appellate or Revisional Court. The initial jurisdiction that carries out this sacred act of
compliance of the To execution. In view of the lower number of units, it has also been shown that
The executions, which are required for the execution of the decree, do not offer much As needed and desired,
time and importance. It is just the execution that is conducted, Reveals and denotes the meaning of the decrees
to be passed and the decrees to be passed The Court's pedestal and the sanctity of the text. Even entirely after
spending decades.

Order 21 CPC Rule 42

7
AIR 1965 Ker 288
Attachment before execution judgment:-
Command 21 Rule 42 CPC deals with the attachment before the attachment before the command. An inquiry is
conducted by the Court as to rent or mesne benefit or any other matter, the It is possible to bind the property of
the judgement debtor before the sum due is due. As decided by the rules of Order 38 Rule 5 CPC.

Decision which are considered as a decree

1. Order of abatement of suit.
2. . Dismissal of appeal as time barred.
3. Dismissal of suit or appeal for want of evidence or proof.
4. Rejection of plaint for non-payment of court fees.
5. Granting or refusing to grant costs or instalment.
6. Modification of scheme under section 92 of the code.
7. Order holding appeal not maintainable.
8. Order holding that the right to sue does not survive.
9. Order holding that there is no cause of action.
10. Order refusing one of several reliefs.

Decision which are not considered as a decree.

1. Dismissal of appeal for default.

2. Appointment of commissioner to take account.
3. Order of remand.
4. Order granting or refusing interim relief.
5. Return of plaint for presentation to proper court.
6. Dismissal of suit under order 23 rule 1.
7. Rejection of application for condonation of delay.
8. Order holding an application to be maintainable.
9. Order refusing to set aside sale.
10. Order directing assessment of mesne profit
RELEVANT CASELAWS:

1. M.S. Shashirekha V. Shantharaja Reddy8.

...Order twenty one Rule forty two CPC having been objected to by the respondent by filing statement of
objections, this judicial writ petition was filed on ten.3.2014, to direct the Execution Court to make a decision
IA.2...ORDERO.S No. 208/2009 filed by the petitioner against the respondent was appointed by the learned Prl.
Civil decide at Madhugiri and therefore the respondent having been directed to pay...the maintenance at the
speed of Rs. 5,000/- p.m, Execution case No. 42/2012 was filed on one.9.2012 within the Court of Civil decide
(Jr. Dn.), Madhugiri9

2. GanshamadasGirdhardas Et Al. V. Siraramasubramaniam Et Al.

...petitioners have invoked the provisions of Order twenty one, Rule 42, CPC. also. Order 21, Rule 42, CPC.
provides that wherever a decree directs AN inquiry; the decree has been recorded. Order 21, Rule 42, CPC.
authorises attachment for mesne profits before the quantity of such profits has been discovered. The
petitioners...now need to connect the property for realisation of any quantity that will be granted to them in
charm. In our read, to such proceedings, Order 21, Rule 42, CPC. is not... 10

3. Kusum HarilalSoni V. Nandlal Mehta Et Al..11

...having been withdrawn by Respondent one. 6. On 10-4-2002, the appellant filed a miscellaneous application
under Order twenty-one Rule forty-
two, CPC for recovery of quantity of...the suit property. On 56-2002 the applying filed by the appellant below
Order twenty-one Rule forty two was allowed and Respondent one was directed to pay arrears of monthly
licence fee...21 Rule forty two CPC by the appellant against Respondent one restraining her from
selling/transferring/disposing off the flat in question, so the order dated 6-12-2000 with regard to12...

4. SUBASH CHANDER PETITIONER v. STATE OF geographic area ANDANOTHER.

petitioner filed elaborate objections below the provisions of Order twenty-one Rule forty two CPC
on the bottom that notice ought to are issued to him. The aforesaid objections were...RANJIT
8
2014 SCC Online Kar 6468
9
https://indiankanoon.org/doc/979602/
10
https://indiankanoon.org/doc/200500/
11
AIR 2016 SC 2000
12
https://www.casemine.com/search/in/hc%2Bcourt%2Bjudgements
 SINGH, J.The petitioner seeks quashing of the order Annexure P-8 gone byDeputy Commissioner,
Jalandhar, physical exercise the powers of commissioner.On...12.11.1984, AN order of eviction was
passed on AN application filed by the State below the geographic area Public Premises and Land...

5.SRI. SHRINIVAS S/O SHAMRAO HAWALDAR v. VENKATESH S/O TIMMAYYA @

TIMMANNAGURATALKAR.

The respondent filed objection to it. Meanwhile, the petitioner additionally filed AN interim application
under Order twenty one Rule forty two CPC, in Civil Misc. No.63/2011 for...has laid-off the applying filed by
the petitioner below order xxi rule forty two of cpc, for attaching the property happiness to the Judgment
someone.
2. in short the facts of the case square measure...provision of Order XXI Rule forty two CPC, is for grant of
contemporary attachment of property, and not for re-attachment of the property. The learned decide has
additionally detected the actual fact that the property..

In N.Janakamma v. B.VenkataLakshmamm13
It was held that mere pendency of an application of adecree for mense profit cannot constitute a basis for filing
an application under Rule 42 of Order XXI.
It is mandatory that a decree must be existing directing payment of mense profit, before the said provision is
pressed into service.

Attachment of property:-
Attachment is a legal mechanism in which, at the request of a creditor, a court of law designates particular
properties held by the debtor to be transferred to the creditor or sold for the creditor's gain. In execution of a
decree, the property belonging to the judgement debtor or the property over which, or the income of which, he
has disposal control which he may exercise for his own gain, shall be liable for attachment and sale. Sections
60-64 and Rules 41-57 of Order 21 of CPC 1908 deal with the matter of property attachment. 14 Section 60
covers property that can be attached and can not be attached within its control. All saleable property, including
property, houses or other properties, commodities, money, banknotes, cheques, exchange bills, hundis,
promissory notes, government securities , bonds or other money securities, debts, company shares, and other
than the specifically excluded assets belonging to the judgement-the debtor may be attached and sold in
execution of a decree against him. The decree is only a money decree and not a mortgage decree, as stated in
this section. It is critical that the property not only belongs to the judgement-debtor, but has the right to dispose

13
 2007 (3) ALD 169
14
http://www.legalserviceindia.com/legal/article-174-attachment-of-property-
of it that can be exercised for his benefit. The proviso of Section 60(1) contains properties that are excluded
from attachment and sale. Section 61 also includes the partial exemption from attachment of agricultural goods,
including the required wearing of clothing, cooking vessels, bedding, craftsmen's equipment, husbandry tools,
farmers' homes, wages, salaries, pensions and gratuities, compulsory reserves, the right to future maintenance,
etc. Two opposing views exist as to whether the judgement-debtor has a choice to waive the gain granted by this
clause.

Procedure of Attachment:-
The mode of procedure for attaching immovable property starts with the issuance to the judgement debtor of a
prohibitive order and, in general, to the public, the order would prevent the judgement debtor from transferring
or charging the property. The debtor of the judgement shall appear before the court on the date prescribed for
the determination of the period of the proclamation of sale. Copying of the prohibitory order is generally
appropriate for immovable property. But if the land is one where revenue is paid to the government, three
copies of the prohibitory order are prepared. In order to make the attachment legitimate, it is important to match
the details provided in the schedule attached to the order strictly with the details given in the warrant schedule
of the property. In addition, the warrant and the prohibitory order shall be forwarded to the Nazir, along with a
copy. The Nazir will support the warrant and return it before the court within a prescribed time. If any person
deputised by the Nazir complains of the above work of attachment of property, a seprate document must be
attached to the manner in which the day and hour at which he did such act. For the purpose of announcing the
warrant, beating of drum some customary procedure will be done, and the copy of it will be affixed on the
prominent part of the property as well as on the court house. After that, the reader must record a note indicating
that it has complied with all the required formalities dictated by law to be followed. In order to ensure its
accuracy, the presiding officer may make adjustments. In order to avoid some kind of material irregularity as it
could cause significant trouble and damage to the parties , the court should ensure that all the conditions or
formalities for a valid attachment have been complied with. The civil court should also apply due care and
caution in the process of serving attachment warrants before taking any action regarding the property15

15
http://lawtimesjournal.in/modes-of-attachment-of-property
CONCLUSION

I conclude my topic by giving proper explanations, case laws etc... The Code of Civil Procedure lays down
provisions to pronounce and issue the choice of the Court and decree is one in all them. A decree within the call
of a court that determines the rights at issue between the parties to suit.
Decrees are often preliminary, final or part preliminary and part final. there's additionally an idea of the deemed
decree. A decree is totally different from order and judgement in some ways. A decree being the set of
judgment may be a formal expression of the resolution of the controversies or bones of rivalry existing between
the various parties to a contract. Its public knowledge that rights is also procedural or substantive. However the
rights declared below a decree should be substantive and not simply procedural. ``
ATTACHMENT OF DECREE” has been clearly explained in RULE 21 ORDER 42 of Civil Procedure code.
What I propose is the creation of additional categories of people who do not have the means to defend
themselves probably because of their sociological, economic or psychological condition. However both the
Juvenile Justice Act and Criminal Procedure Code dictates the procedure to be followed for the apprehension,
detention and punishment/acquittal of persons alleged to have committed the crime but the objective of both
differs.
Not only that there is an exigent need to reinforce and promote the sensitization programme for authorities
concerned in a trial, before trial and after trial. Until and unless these categorical classification and
corresponding treatment of accused is not recognized, ends of justice cannot be met.
REFERENCES/ BIBLIOGRAPHY
BOOK

• Civil Procedure with Limitation Act, 1963, by C K TAKWANI

• THE CODE OF CIVIL PROCEDURE by DinshahFardunji Mulla

• The code of civil procedure by Ray Sukumar

• Civil procedure code of India: Indian law series by Shubham Sinha

• Code of civil procedure by William .F. Harvey

STATUES REFFERED

 Order XXI of civil procedure code

 RULE 41-57 OF CIVIL PROCEDURE CODE
 OREDER XXI RULE 42
 SECTION 2(2

WEBSITES

 https://indiankanoon.org/
 https://www.casemine.com
 http://www.legalserviceindia.com/legal/article-174-attachment-of-property-
 http://lawtimesjournal.in/modes-of-attachment-of-property