Form and effect of execution of convey ance by Court. Decree for immove perty. Court shall thereupon pass such order1 as it thinks fit, and execute, or alter and execute, the duplicate in accordance therewith. 262. The execution of a conveyance, or the endorsement of a negotiable instrument, by the Court under the last preceding section may be in the following form, 'C. D., Judge of the Court of (or as the case may be), for A. B., in a suit by E. F., against A. B.,' or in such other form as the High Court may from time to time prescribe, and shall have the same effect as the execution of the conveyance or endorsement of the instrument by the party ordered to execute or endorse the same 2. 263. If the decree be for the delivery of any immoveable able pro- property 3, possession thereof shall be delivered over to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, and, if need be, by removing any person bound by the decree who refuses to vacate the property. Delivery of immoveable pro in occupancy of tenant. 264. If the decree be for the delivery of any immoveable of a tenant or other property in the occupancy entitled person perty when to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property 5, and proclaiming to the occupant by beat of drum, or in such other mode as is customary, at some convenient place, the substance of the decree in regard to the property: Provided that, if the occupant can be found, a notice in 1 Such orders are appealable to the High Court, sec. 588, cl. (15), sec. 589. 2 That an assignment, by endorsement signed by the Judge, of a mortgage for more than rs. 100 requires registration, see 2 All. 392. This would not include an order for foreclosure absolute, Wood v. Wheater, 22 Ch. D. 281. Section 263 relates only to the delivery of immediate possession. When the property is in the occupation of a tenant, etc., see sec. 264. This power to remove would, where the property is a house, probably include the right to break the door, 7 Bom. H. C., Cr. Ca. 85. For a form of warrant to give possession, etc., see sched. IV, no. 137. 5 When this was not done, see 15 Suth. Civ. R. 99. writing containing such substance shall be served upon him, and in such case no proclamation need be made 1. of estate or 265. If the decree be for the partition or for the Partition separate possession of a share of an undivided estate paying separation revenue to Government, the partition 2 of the estate or the of share. separation of the share shall be made by the Collector and according to the law, if any, for the time being in force for the partition2, or the separate possession of shares, of such estates 3. F.-Of Attachment of Property. liable to sale in exe 266. The following property is liable to attachment and Property sale in execution of a decree, (namely), lands, houses or other attachbuildings, goods, money, bank-notes, cheques, bills of exchange, ment and hundís, promissory-notes, Government-securities, bonds or cution of other securities for money, debts, shares in the capital or decree. joint stock of any railway, banking or other public Company or Corporation, and, except as hereinafter mentioned, all other saleable property 6, moveable or immoveable, belonging to the judgment-debtor or over which, or the profits of which, he has a disposing power which he may exercise for his own If the decree-holder does not choose to put in motion this power, and contents himself with a mere formal order declaring his possession, but giving him no actual possession, it seems that (notwithstanding secs. 13 and 244) he may sue for ejectment, II Cal. 93. 2 'partition' here includes the delivery of the shares to their respective allottees, II Bom. 662. 38 Bom. 539. This section does not apply to raiyatwárí land, but to permanently settled estates, 6 Mad. 97, confirmed in 7 Mad. 382. As to the meaning of 'estate' in the N. W. Provinces, see 6 All. 452; in the Lower Provinces, 7 Cal. 153: 10 Cal. 436, 440. As to executing decrees in partition-cases, see 3 Cal. 514 and 551 7 Cal. 153. 'Debts' here means claims other than judgment-debts [as to these see 5 Where the decree expressly directs That a decree for money may be attached, see 7 Ben. 318. So can a right to redeem, 5 Ben. 380, unless the person applying for attachment is the mortgagee, 5 Ben. 450: I Cal. 337. And see 7 Mad. 315 (share of land in Malabar devised with a clause that it should be held impartible), and 7 Ben. A. C. J. 159 (house built and occupied with permission of owner of land for forty years). benefit 1, and whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, (namely)— (a) the necessary wearing apparel of the judgment-debtor, his wife and children 2; (b) tools of artizans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle as may in the opinion of the Court 3 be necessary to enable him to earn his livelihood as such ; (c) the materials of houses and other buildings belonging to and occupied by agriculturists * ; (d) books of account 5; (e) mere rights to sue for damages; (f) any right of personal service 7; A member of an undivided Hindú family may, in the Bombay Presidency, alienate for valuable consideration his share in the undivided property. Such share may therefore be taken in execution for his debt, 10 Bom. H. C., 139; and see 4 Cal. 723: L. R., 4 I. A. 247: 4 Cal. 809. But land assigned to a Hindú widow with a proviso against alienation could not be attached and sold in execution of a money-decree against her, 10 Bom, 604. 2 9 Bom. H. C. 272. The mangalasūtra, or neck-ornament worn by a Hindú married woman during her husband's lifetime and never removed till his death, is part of her 'necessary wearing apparel,' 9 Bomb. 106. And all ornaments on her person, if forming part of her stridhana, are exempt from execution against her husband, 8 Bom. H. C., A. C. J. 129. 3 In order to exempt from execution any of the debtor's cattle the Court must first express its opinion that such cattle are necessary to enable him to earn his livelihood, and the Court which has to decide this point is the Court which issues the execution, 10 Cal. 40. This exempts houses dwelt in by agriculturists as such and the farmbuildings appended to such dwellings, 7 Bom. 531. It does not exempt the materials of a house specifically mortgaged, 4 Bom. 25, where the mortgagee has obtained a decree for its sale. 5 3 Bom. H. C., O. C. J. 42. Though account-books cannot be attached and sold as waste paper, yet, to prevent a judgment-debtor from making away with his books and thus defeating a decree-holder, the Court executing a decree may, when the decree-holder applies to attach debts in execution, require the judgment-debtor to produce his books in Court and leave them in the Court's custody, 3 N. W. P. 334. 6 7 Ben. 187: 6 N. W. P. 95. 'Damages' here includes mesne profits, 9 Cal. 697, per Field J. (g) stipends and gratuities allowed to military and civil pensioners of Government1, and political pensions; (h) the salary of a public officer or of any servant of a Railway Company, when such salary does not exceed twenty rupees per mensem, and one moiety of the salary of any such officer or servant when his salary exceeds that amount 2; (i) the pay and allowances of persons to whom the Native Articles of War 3 apply; (j) the wages of labourers and domestic servants5; (k) an expectancy of succession by survivorship, or other merely contingent or possible right or interest"; (7) a right to future maintenance 7. Explanation.—The particulars mentioned in clauses (g), (h), (i), and (j) are exempt from attachment or sale whether before or after they are actually payable : Provided also that nothing in this section shall be deemed (a) to exempt the materials of houses and other buildings from attachment or sale in execution of decrees for rent, or (b) to affect the Army Act, 18818, or any similar law for the time being in force. 1 7 Suth. Civ. R. 169: 4 Mad. H. C. 277 5 ibid. 371. This includes gratuities granted in consideration of past services, 5 Mad. 272: 6 All. 173. For 'pensioners' the word ' ex-servants' should have been used. 26 'Salary' here means pay actually drawn by the judgment-debtor at the time of the attachment or from time to time, 6 Mad. 179. See Act V of 1869, Part III, cl. (b). i.e. those who earn their daily bread by personal manual labour or in occupations which require little or no art, skill, or previous education, 5 Bom. 134. 5 As to the meaning of this expression, see 8 Ben. 244, a case on the construction of a will. such as the interest of an heir expectant on the death of a Hindú widow in possession, 7 Ben. 341, and see 8 Suth. Civ. R. 253; or the interest which the vendor of land has in the purchase-money before execution of the conveyance, where it has been agreed that payment shall be made on such execution, 3 All. 12. A claim which may accrue under a pending award cannot be sold in execution, 7 Ben. 187: nor can the life-interest of the judgment-debtor in the residue of the property of a testator after full administration thereof, 6 Moore, I. A. 510. Whether a decree-holder who is also a partner of the judgment-debtor can attach the judgment-debtor's share in the partnership assets, the business being then in the hands of a receiver under a decree for dissolution and windingup, see 5 Ben. 382, 386: 4 Bom. 222. 76 Suth. Mis. 64, col. 2: 7 Suth. Civ. R. 311: but see 10 Cal. 521 and 6 Ben. 646. 8 9 44 & 45 Vic. c. 58, sec. 151. 9 Mad. 170. The sale of arms by the nazir of the Court, in execution of a decree, is a sale by a public Power to summon and ex 267. The Court may, of its own motion or on the applicaof the decree-holder, summon any person whom it thinks amine per- necessary, and examine him in respect to any property liable to be seized in satisfaction of the decree1, and may require the person summoned to produce any document in his possession or power relating to such property 2, and, before issuing the summons of its own motion, shall declare the person on whose behalf the summons is so issued. sons as to property liable to be seized. Attachment of debt, share 268. In the case of (a) a debt not secured by a negotiable instrument, (b) a share in the capital of any public Company and other or Corporation, (c) other moveable property not in the possesnot in pos- sion of the judgment-debtor, except property deposited in, or session of in the custody of, any Court, the attachment shall be made judgmentdebtor. by a written order prohibiting3, property (a) 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 5; (b) 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 6; (c) in the case of the other moveable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor. A copy of such order shall be fixed up in some conspicuous part of the court-house, and another copy of the same shall be sent, in the case of the debt, to the debtor", in the case of the share, to the proper officer of the Company or Corporation, servant in discharge of his duty, and 3 3 N. W. P. 334. 3 For forms of such order, see sched. IV, nos. 138. 139, 140. who is called the garnishee. That he cannot set-off a debt due to him by the decree-holder see L. R., 10 Q. B. 28. 5 The Court cannot call on a person subject to a prohibitory order to pay, or show cause why he should not pay, his debt into Court. The Court must satisfy itself that a debt is due, and the debt must then be sold and delivery made under secs. 284 and 381, 10 Mad. 194. As to the position of a judgment-creditor attaching a debt under this section as regards prior assignees, see 8 Bom. H. C., O. C. J. 169. Cf. the English rules as to distringas, 1 & 2 Vic. c. 100, ss. 14, 15: 3 & 4 Vic. c. 82, s. 1: Order xlvi. r. 1. It is not enough to affix it to the wall of the debtor's dwelling-house, 10 Ben. Appx. 12. |