Order XXI Rule 42 CPC: Attachment Before Rent or Mesne Profits Are Determined

Order XXI Rule 42 of the Code of Civil Procedure, 1908 permits the executing court to attach a judgment-debtor's property even before the amount payable is calculated, where a decree directs an inquiry into rent, mesne profits or another matter.

Key principle: The amount need not already be quantified for the court to order attachment under this specific rule. Attachment preserves a means of satisfying the decree; it is not, by itself, a final determination of liability or an automatic sale.

Text of Order XXI Rule 42 CPC

Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

Meaning and scope of Rule 42

This provision applies when the decree itself directs an inquiry to determine a monetary amount. Ordinarily, execution of a money decree proceeds with an identified sum. Rule 42 expressly permits an earlier attachment where the decree establishes the basis for an inquiry but the final amount has yet to be ascertained.

The word may gives the court discretion; attachment is not automatic. The court must act within the CPC and any applicable local rules, including safeguards protecting property that cannot lawfully be attached.

Important legal definitions

Decree - Section 2(2) CPC: The formal expression of an adjudication conclusively determining the rights of parties regarding all or any matters in controversy in the suit, subject to the statutory definition and exclusions.
Decree-holder - Section 2(3) CPC: A person in whose favour a decree has been passed or an order capable of execution has been made.
Judgment-debtor - Section 2(10) CPC: A person against whom a decree has been passed or an order capable of execution has been made.
Mesne profits - Section 2(12) CPC: Profits received or receivable with ordinary diligence by a person in wrongful possession, with interest, but excluding profits due to improvements made by that person.
Attachment: A court-directed legal restraint on specified property in execution, subject to the applicable procedure and exemptions.

When can the executing court order attachment?

A relevant decree exists: The decree directs an inquiry into rent, mesne profits or another matter.
The amount remains unascertained: The sum payable has not yet been finally calculated.
An application is made: The decree-holder seeks execution and identifies property or relief in accordance with the applicable requirements of Order XXI.
The court considers attachment: The executing court determines whether attachment is appropriate and follows the ordinary rules governing attachment for money decrees.
Subsequent proceedings continue: The inquiry determines the amount; any further enforcement follows the relevant CPC provisions and orders.

Difference between attachment and sale

Rule 42 authorizes attachment before quantification, not an unrestricted right to sell property before the amount due has been determined. Sale and distribution of proceeds require compliance with the separate execution provisions governing the relevant kind of property. The court must also respect statutory exemptions and third-party rights.

How is mesne profit calculated?

Under Section 2(12) CPC, mesne profits concern the benefit obtained, or reasonably obtainable, from wrongful possession, together with interest. The inquiry may consider evidence such as the nature of the premises, comparable rental value, period of wrongful possession and other relevant circumstances. Order XX Rule 12 CPC governs decrees for possession and rent or mesne profits in appropriate suits, subject to its terms.

Example of Rule 42 in practice

A court passes a decree directing an inquiry into mesne profits for a period of wrongful occupation. The final amount has not yet been fixed. The decree-holder may seek attachment of the judgment-debtor's attachable property under Rule 42 while the inquiry proceeds. Whether attachment is ordered, and what property may be attached, depend on the court's assessment and applicable legal safeguards.

Related CPC provisions

Section 2(12): Definition of mesne profits.
Section 51: Modes of executing decrees, including attachment and sale, subject to statutory conditions.
Section 60: Property liable to attachment and sale and applicable exemptions.
Order XX Rule 12: Decrees for possession and rent or mesne profits.
Order XXI Rule 41: Examination of judgment-debtor regarding assets.
Order XXI Rule 42: Attachment before rent, mesne profits or another amount is ascertained.
Order XXI Rule 43: Attachment of specified movable property in the judgment-debtor's possession.
Order XXI Rule 54: Attachment of immovable property.
Order XXI Rule 58: Adjudication of claims and objections to attachment.

Frequently asked questions

What does Order XXI Rule 42 CPC provide?

It allows attachment of a judgment-debtor's property when a decree directs an inquiry into rent, mesne profits or another matter, even before the payable amount is ascertained.

Can property be attached before mesne profits are calculated?

Yes. Rule 42 permits attachment before quantification where the decree directs the relevant inquiry. The attachment remains subject to applicable execution safeguards.

Does attachment under Rule 42 mean immediate sale of property?

No. Attachment and sale are distinct steps. Rule 42 permits attachment pending ascertainment; any subsequent realization must follow the applicable CPC execution provisions.

What are mesne profits under the CPC?

Section 2(12) defines mesne profits broadly as profits actually received or which could with ordinary diligence have been received by a person in wrongful possession, together with interest, excluding profits attributable to improvements made by that person.

Official legal resources

Read the Code of Civil Procedure, 1908 (Act 5 of 1908), including Order XXI of the First Schedule, through the official India Code portal. The Supreme Court of India provides access to judgments and court information. Check applicable state amendments and High Court rules before relying on a procedural provision.

This article provides general legal information; outcomes depend on the decree, evidence, local amendments and applicable judicial decisions.