What property is liable to attachment and sale in execution?

The General Rule: All Saleable Property

The opening words of Section 60(1) state the principle in the broadest possible terms. The following kinds of property are liable to attachment and sale: lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation — and, significantly, all other saleable property, moveable or immoveable, belonging to the judgment-debtor, or over which he has a disposing power which he may exercise for his own benefit, whether the same be held in his own name or by another person in trust for him or on his behalf.

The sweep of this provision is deliberately wide. The essential touchstone is that the property must be saleable. This word is not used loosely — it means property that is capable of sale by the court at a compulsory auction. For any property to be attachable under this section, two conditions must be satisfied: first, the property must actually exist — future or uncertain profits cannot constitute saleable property; and second, the property must be capable of being transferred, for a right that is purely personal and non-transferable, such as a mere right of residence, is not saleable within the meaning of this section.

The Doctrine of Disposing Power

A particularly significant feature of Section 60 is the concept of disposing power. The section does not limit attachable property to what the judgment-debtor owns outright. It reaches also any property over which the judgment-debtor has a disposing power exercisable for his own benefit. This is a provision of considerable practical consequence. A Hindu father, for instance, has a disposing power over the whole of the joint family property for the purpose of satisfying his antecedent personal debts under certain well-recognised circumstances, and such joint family property will accordingly be subject to attachment even though it is not his exclusive property. Similarly, where property is held by a third party in trust for the judgment-debtor, it comes within the reach of this section.

The position with respect to beneficial interests under trusts was considered by the Supreme Court, which held that a contingent interest of a judgment-debtor under a trust deed is not attachable. If the interest is a vested interest — one that has already accrued to him unconditionally — it is attachable; but a contingent interest, which depends upon a future uncertain event, is not, even if it might be transferable inter vivos by private agreement. A flat in a tenant co-partnership housing society under the Maharashtra Co-operative Societies Act has been held to be liable to attachment and sale in execution. The law, in short, looks to substance and not form — if the judgment-debtor can in law turn the property to his own account, it is within the reach of the executing court.

The Important Exceptions: Property Exempt from Attachment

While the general rule is one of breadth, the proviso to Section 60(1) carves out an extensive catalogue of property that is placed entirely beyond the reach of the executing court. These exemptions exist for reasons of public policy, social compassion, and the protection of the judgment-debtor's basic dignity. The courts have emphasised that not even an agreement by the judgment-debtor to waive these exemptions can be given effect — Section 60(1-A) expressly declares any such agreement to be void.

The categories of exempt property under the proviso are as follows:

• Clause (a): The necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman. The qualifier "necessary" is deliberate — only essentials of daily life, not luxuries, are protected.

• Clause (b): Tools of artisans; and in the case of an agriculturist, his implements of husbandry, such cattle and seed-grain as the court considers necessary to enable him to earn his livelihood, and such portion of agricultural produce as the State Government may declare to be free from liability under Section 61. It has been held by a Full Bench of the Madhya Pradesh High Court that an electric motor pump fitted in a well in an agriculturist's field qualifies as an implement of husbandry and is thus exempt from attachment.

• Clause (c): Houses and buildings with their materials and the land appurtenant thereto, belonging to an agriculturist, labourer or domestic servant and occupied by him. This protection extends to the entire residential house. The Supreme Court held in Ram Lal v. Piara Lal (AIR 1973 SC 2124) that even if a portion of the main residential house of the judgment-debtor is used for a shop, the entire house remains exempt from attachment. However, this exemption does not protect against a decree for the rent of that very house or building.

• Clause (d): Books of account — these are protected because compulsory seizure of accounts would disrupt a person's business or profession.

• Clause (e): A mere right to sue for damages. This is a personal right of action that cannot be transferred and is therefore not saleable.

• Clause (f): Any right of personal service.

• Clause (g): Stipends and gratuities allowed to pensioners of the Government or a local authority or any other employer, and political pensions. The Supreme Court has made it clear that pensionary benefits and gratuity converted into fixed deposit receipts also retain this exemption and cannot be attached. The word "pension" implies periodical payments and cannot be stripped of its protective character by mere conversion into a different financial instrument.

• Clause (h): Wages of labourers and domestic servants, whether payable in money or in kind. Section 60, by Explanation IV, defines "labourer" to include skilled, unskilled and semi-skilled labourers, and "wages" to include bonus.

• Clause (i): Salary to the extent of the first one thousand rupees and two-thirds of the remainder, in execution of any decree other than a decree for maintenance. This protection recognises that a salaried person must have sufficient income left to sustain himself and his dependants. There is, however, an important additional protection built into this clause: where the attachable one-third portion of a salary has been under attachment — whether continuously or intermittently — for a total period of twenty-four months, that portion becomes exempt for a further period of twelve months; and if the attachment has been in execution of one and the same decree, after twenty-four months the attachable portion becomes finally exempt from attachment in execution of that very decree. This prevents a judgment-debtor from being perpetually pauperised by a single creditor.

• Clause (ia): One-third of salary in execution of a decree for maintenance — a provision that ensures a maintenance-creditor can recover, while still leaving the debtor with adequate means.

• Clause (j): Pay and allowances of persons to whom the Air Force Act, Army Act or Navy Act applies — military personnel are thus protected.

• Clause (k) and (ka): All compulsory deposits in Provident Funds under the Provident Funds Act, 1925, and all deposits under the Public Provident Fund Act, 1968, to the extent declared non-attachable by those statutes. The Supreme Court in Union of India v. Jyoti Chit Fund and Finance (AIR 1976 SC 1163) confirmed that amounts due from the government to employees towards provident fund and pensionary benefits are not liable to attachment, and even the government itself has the locus standi to raise an objection to prevent such attachment.

• Clause (kb): All moneys payable under a policy of life insurance of the judgment-debtor — a provision that secures a family's protection.

• Clause (kc): The interest of a lessee in a residential building to which rent control legislation applies — tenancies that are protected by statute cannot be torn away through execution.

• Clause (l): Any allowance forming part of the emoluments of a government servant or railway or local authority employee that the appropriate government has notified as exempt, and any subsistence grant or allowance paid during suspension.

• Clause (m): An expectancy of succession by survivorship or other merely contingent or possible right or interest — the hope of inheriting in the future is not a present asset that can be seized.

• Clause (n): A right to future maintenance — a right to be maintained in the future is personal and inalienable.

• Clause (o): Any allowance declared by any Indian law to be exempt from attachment — a basket clause preserving exemptions granted under special legislation.

• Clause (p): Where the judgment-debtor is liable to pay land-revenue, any movable property which, under any applicable law, is exempt from sale for arrears of such revenue.

Arrears of Salary

There is one distinction that courts have consistently maintained. While current salary enjoys the statutory protection described above under Clause (i), arrears of salary that have already accrued and are lying due to the judgment-debtor do not carry the same exemption. The Supreme Court held in Union of India v. Hira Devi (AIR 1952 SC 227) that there is no exemption for arrears of salary and allowances that are already due — such amounts can be freely proceeded against in execution. The reasoning is that once salary has been earned and has accrued as a debt, it loses its character as "salary" for the purpose of the protective provisions of Section 60.

The Relationship to the Executing Court's Duty

It is also worth noting that the executing court does not automatically investigate whether the property sought to be attached falls within the exemptions. The practice is that the judgment-debtor must claim the exemption. The Supreme Court has held that if a judgment-debtor, having received notice of attachment, does not claim an exemption at that stage, he may be barred by the principle of constructive res judicata from raising it at a later stage of the same execution proceedings. The judgment-debtor who receives notice under Order XXI Rule 22 and fails to object on grounds of exemption cannot ordinarily raise that objection after an order directing attachment has been passed and has attained finality.

In its totality, Section 60 reflects a carefully calibrated legislative balance — robust enough to ensure that a decree-holder can effectively recover what is due, yet humane enough to preserve the basic livelihood and dignity of the judgment-debtor and his family. The law does not allow courts to be instruments of total destitution.