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Order XXI Rule 46 CPC: Attachment of Debts, Shares and Other Movable Property

Order XXI Rule 46 of the Code of Civil Procedure, 1908 prescribes how an executing court attaches certain debts, corporate shares and movable property held by a person other than the judgment-debtor. Instead of physically seizing the asset, the court issues a written prohibitory order.

Key point: Rule 46 applies to specified intangible assets and movable property outside the judgment-debtor's possession. It does not govern property already deposited in or held by a court, and the particular attachment method depends on the nature of the asset.

Meaning and legal context

A decree-holder is the person in whose favour a decree has been passed; a judgment-debtor is the person against whom the decree is enforceable. An attachment is a court-directed legal restraint on dealing with property to facilitate execution of a decree. A garnishee is a third party who owes a debt to the judgment-debtor and may be directed to pay it into court under the relevant rules.

Section 60 CPC identifies property generally liable to attachment and sale, subject to statutory exemptions. Order XXI provides the procedural rules for execution. State or High Court amendments and specific laws may affect individual proceedings.

Order XXI Rule 46: Explanation of all three sub-rules

Rule 46(1): Property covered and prohibitory orders

The rule addresses three categories:

  1. Unsecured debt not secured by a negotiable instrument: the order restrains the creditor (the judgment-debtor, in relation to that debt) from recovering it and the person owing the debt from paying it, until further court order.
  2. Shares in the capital of a corporation: the order restrains the person in whose name the shares stand from transferring them or receiving dividends.
  3. Other movable property held by another person: except property deposited in or in the custody of a court, the order restrains the possessor from delivering it to the judgment-debtor.

The restraint is imposed by a written court order, not automatically by the decree-holder's request.

Rule 46(2): Display and communication of the order

A copy of the attachment order must be affixed in a conspicuous part of the court-house. Another copy is sent to the relevant recipient: the person owing the debt, the proper officer of the corporation in the case of shares, or the person possessing the movable property.

Rule 46(3): Payment into court

A person prohibited from paying a debt under Rule 46(1)(i) may instead pay the debt amount into court. Such payment discharges that person to the same effect as payment to the party otherwise entitled to receive it.

How attachment under Rule 46 generally works

  1. The decree-holder seeks execution and identifies the attachable debt, shares or movable property and the relevant third party.
  2. The executing court considers the request and, where appropriate, makes a written prohibitory order.
  3. The order is affixed at the court-house and a copy is communicated to the specified person or officer.
  4. The relevant person must comply with the restraint unless the court varies or withdraws it. For attached debts, further garnishee proceedings may follow under Rules 46A to 46I.

Section 60: specifies property liable to attachment and sale in execution, together with exemptions. Order XXI Rule 43: generally governs movable property in the judgment-debtor's possession, ordinarily by actual seizure. Rule 46A: permits a garnishee notice concerning an eligible attached debt, on application supported by an affidavit. Rule 46B: provides for an order against a garnishee who fails to pay or show cause. Rule 46C: deals with disputed liability. Rules 46D to 46I: address third-party interests, orders, valid discharge, costs, appeals and application to negotiable instruments.

For the full statutory wording, see the official Code of Civil Procedure, 1908 (India Code PDF). The CPC section and order index also provides related provisions.

Illustrative example

If A obtains a money decree against B and C owes B an attachable debt, A may ask the executing court to attach that debt. If the court issues an order under Rule 46, B is restrained from collecting it and C is restrained from paying B. C may pay the amount into court under Rule 46(3), and the court may deal with further garnishee proceedings under Rules 46A onward as applicable.

Frequently asked questions

Does Rule 46 require physical seizure?

No. For the specified categories, attachment is effected by a written prohibitory order.

Can the third-party debtor pay the amount into court?

Yes. Rule 46(3) expressly permits payment into court and provides a corresponding discharge.

Are negotiable instruments covered by the debt category in Rule 46(1)(a)?

No. That clause covers a debt not secured by a negotiable instrument. Other attachment provisions, including Rule 51 and Rule 46I where applicable, must be considered.

Can every asset be attached?

No. Section 60 CPC contains exemptions, and special laws or applicable procedural amendments may impose additional limits.

Legal information only. The applicable statutory text, local amendments, court orders and facts should be checked before taking action.