ATTACHMENT AND SALE OF IMMOVABLE PROPERTY

ATTACHMENT AND SALE OF IMMOVABLE PROPERTY: i) The Court which can sell the immovable property – Small Causes Courts cannot sell the property, original courts only can sell the property. If the decree of the Small Causes Court is to be executed by sale of the property, the same has to be transferred to the original court under Or.21 Rule 4 C.P.C. ii) The property which cannot be sold in execution – See Sec.60 (1) (c) iii) The D.Hr can issue a notice to the J.Dr. to furnish the details of the property. The J.Dr can be examined. The J.Dr can be directed to file an affidavit in respect of his properties. If J.Dr. fails to file such an affidavit, he can be sent to civil prison upto three months. Affidavit form No.16A – Apeendix E of CPC. Such a notice can also be issued if the J.Dr is a corporation. Read Order 21 Rule 41. iv) Attachment - Fresh Attachment is not necessary if (a) the property is attached before the judgement (b) in the mortgage decree (c) the properties are charged properties. How an attachment can be made: Order 21 Rule 54 – A.P.Amendment, -FormNo.24/App.E/CPC Order 21 Rule 55 – raising of attachment As per Sec.64, sale is void during the subsistence of the attachment Order 21 Rule 57- Order as to the raise of the attachment Sec.63 : Attachment by several Courts: Parachuri Veerayya –Vs- Yalavarti Veeraraghavayya (AIR 1961 AP 298) Claim petition: Order 21 Rule 58 See Rule 246, 247 of Civil Rules of Practice Form No.66 of Civil Rules of Practice As per Order 21 Rule 58 (2) C.P.C. the claim must be between the parties and their representatives and separate suit is not maintainable. If the claim is rejected under the proviso of Order 21 Rule 58 (1), a separate suit is maintainable. Claim petition is not maintainable if the decree sought to be executed is a mortgage decree since there is no attachment T.Nabi Sab Vs G.Venkateswrlu and another 2008 (4) ALD 770 The claim petition must be filed before the sale. Pl.refer for meaning of “Sold” M/s Magunta Mining co –vs- M. Kondaramireddy and antoher (AIR 1983 A.P. 335) Kancherla Lakshminarayana –vs- Mattaparthi Shaymala & others (AIR 2008 S.C. 2069) The attachment made before the judgment can be questioned in E.P Please refer Alladi Eeswarappa Vs M.Krishna Reddy and another (1963 (2) An.W.R 348) Stay of Sale is under Order 21 Rule 59 under circumstances Along with the attachment, notice must be sent to J.Dr for his appearance as per Order 21 Rule 54 (1-A) Filing of the Petition – Rule 258 and Form No.67 of C.R.P. There must be test by Amin/bailiff if the properties are 1) Charged properties 2) Mortgaged properties & 3) Attached before judgment Order 21 Rule 66 – Rule 259 of C.R.P. Form No.30 of Appendix –E of C.P.C. Mode of proclamation – Order 21 Rule 67, Rule 274 and Form No.70 of C.R.P. Rule 272, Form No.68 of Civil Rules of Practice. If the properties are mortgaged with L.M.Bank – See Rule 276 Documents to be filed: 1) Sale Affidavit 2) E.C. for 12 years 3) Arrears of Taxes 4) Sale papers Leave to bid by D.Hr. Order 21 Rule 72 (1) (3) C.P.C. Order 21 Rule 72 A (1) (2) (in case of mortgage decree holder) Rule 277 of Civil Rules of Practice Upset price can be reduced – Dr.A.V. Natarajan & Others –vsIndian Bank Madras (AIR 1981 Mad.151) Even in Mortgage decree, upset price can be reduced (under certain cirucumstances) See Federal Bank Ltd –Vs- K. Sreedharan & Others (AIR 2003 Kerala 199) Dr. Prabhakar Naidu –Vs- T. Rghava Reddy (2009 (1) ALD 76) Mortagage Decree - Reduction of upset price. Court cannot reduce the upset price – P. Rama Reddy –Vs- P. Sundara Rama Reddy & Others (AIR 1986 AP 29)