An empty bank account is not the end of the road, it just means the road goes through the executing court instead of a garnishee notice to the bank. The Code of Civil Procedure, 1908 lets a decree be executed by attachment and sale of any property of the judgment debtor, and immovable property is exactly what it was written for. The general routes for a creditor are compared in our answer on recovering money someone owes you, and the whole execution process is mapped in our guide to execution of a decree. This answer takes the case where the only asset is the house or the site.
Do I need a decree first, and which suit is fastest?
Yes, unless your money is already the subject of a criminal court's order, which is dealt with below. If the debt rests on a cheque, a promissory note or a written contract, file under Order XXXVII. Rule 1(2) lists the eligible suits, Rule 2 requires the plaint to say it is filed under the Order and to claim nothing outside it, and Rule 3 gives the defendant ten days to enter appearance and then ten days from the summons for judgment to apply for leave to defend. The second proviso to Rule 3(5) is the one to remember: where he admits any part of the claim, leave cannot be granted unless he deposits the admitted amount. Our note on summary suits explains how leave is decided.
Whichever suit you file, apply at once under Order XXXVIII Rule 5 for attachment before judgment if you can show on affidavit that he is about to dispose of the property or move it out of the court's jurisdiction. A debtor with no cash and one flat has every incentive to sell it during the suit, and an attachment before judgment is the only thing that stops the registration.
How do I attach and sell his property?
- File the execution petition in the court that passed the decree, or have it transferred under Section 39 to the court within whose limits the property lies, which Section 39(1)(b) and (c) expressly allow.
- Make him disclose. Under Order XXI Rule 41(1) the court can orally examine the judgment debtor about his property and debts owed to him. Under Rule 41(2), where a money decree has been unsatisfied for thirty days, the court can order him to file an affidavit of assets, and Rule 41(3) permits detention up to three months for disobedience.
- Attach the immovable property. Rule 54 does this by an order prohibiting him from transferring or charging it and prohibiting anyone from taking benefit from such a transfer, proclaimed at the property, affixed at the court house and, for land, notified to the Collector or the gram panchayat. Rule 54(1A) also requires him to attend to take notice of the sale proclamation.
- Attach anything else you find. Movables in his possession are seized under Rule 43. Rent from tenants, receivables from customers and any debt owed to him are attached under Rule 46, after which Rule 46A lets you serve notice on the garnishee to pay the money into court.
- Get an order for sale under Rule 64, then a proclamation of sale under Rule 66 settled after notice to both sides, stating the property, the encumbrances and the amount to be recovered, followed by public auction.
What can I not touch?
Section 60(1) declares what is attachable, and it is wide: lands, houses, goods, money, cheques, debts and shares, and all other saleable property over which he has a disposing power, whether held in his name or by someone in trust for him. The proviso then lists the exemptions.
| Clause | Protected |
|---|---|
| (a) | Necessary wearing apparel, cooking vessels, beds and bedding of the debtor, his wife and children, and personal ornaments a woman cannot part with by religious usage |
| (b) | Tools of artisans, and for an agriculturist the implements, cattle and seed grain needed for his livelihood |
| (c) | Houses and buildings belonging to an agriculturist, a labourer or a domestic servant and occupied by him |
| (g) | Stipends and gratuities of pensioners and political pensions |
| (h) and (i) | Wages of labourers and domestic servants, and salary to the extent of the first one thousand rupees and two thirds of the remainder |
| (k) and (ka) | Compulsory deposits in a provident fund and sums in a public provident fund, to the extent those Acts protect them |
Notice what is not there. An ordinary residential house owned by a trader, a professional or a salaried person is attachable and saleable. The clause (c) protection is for agriculturists, labourers and domestic servants, and a debtor who claims it has to prove he is one.
Can I have him arrested instead?
Only in a narrow case, and the court will test it. Section 51(c) allows execution by arrest and detention, but the proviso says that for a money decree detention cannot be ordered unless, after giving him a chance to show cause and for reasons recorded, the court is satisfied that he is likely to abscond or has dishonestly transferred or concealed property to obstruct execution, or that he has or has had since the decree the means to pay and refuses or neglects to do so. Order XXI Rule 37 requires a show cause notice before a warrant unless he is likely to abscond. Section 56 bars the arrest of a woman in execution of a money decree altogether, and Section 58 caps detention at three months where the decree exceeds five thousand rupees, with no detention at all for two thousand rupees or less. Section 58(2) adds that release does not discharge the debt. Used properly, the show cause notice is a disclosure tool: a debtor who pleads poverty while holding a site has to explain that on oath.
What if my money is under a cheque bounce order?
Then the criminal court recovers it for you. A fine under Section 138, and any compensation ordered under Section 395 BNSS, is levied under Section 461 BNSS. The court may issue a warrant for attachment and sale of his movable property, or a warrant to the Collector of the district to realise the amount as arrears of land revenue from his movable or immovable property, which reaches the house directly. The proviso to Section 461(3) says the Collector's warrant cannot be executed by arrest or detention, and Section 395(5) requires a later civil court to take into account any compensation already paid, so the two routes do not double up.
What should the execution file contain?
- A certified copy of the decree and the judgment, with the interest and costs computed to the date of filing
- The property schedule: survey or khata number, the registered document under which he holds it, and the encumbrance certificate
- The affidavit under Order XXXVIII Rule 5 or Order XXI Rule 41 stating what you know of his assets and why you fear disposal
- Names of tenants, customers or debtors of his for the Rule 46 and 46A notices
- The transfer order under Section 39 if the property lies outside the decreeing court's limits
What I tell clients is to plan the execution before filing the suit, not after winning it. Get the property details from the sub-registrar's records and the encumbrance certificate while the suit is pending, ask for attachment before judgment the day you see a listing or a broker, and use Rule 41 before you spend money on a sale that may fetch a poor price. Court auctions are slow and bidders are wary, so a Rule 54 attachment very often ends in a negotiated payment rather than a sale, which is a perfectly good result. The suit itself, and the court fees and limitation that go with it, are covered in our guide to a money recovery suit.