Attachment of Property in Custody of Court or Public Officer under Order XXI Rule 52 CPC: A Jurisprudential Analysis

Attachment of Property in Custody of Court or Public Officer under Order XXI Rule 52 of the Code of Civil Procedure, 1908: A Jurisprudential Analysis

1. Introduction

Order XXI of the Code of Civil Procedure, 1908 (CPC) embodies the legislative blueprint for execution of decrees in India. Within this scheme, Rule 52 occupies a distinctive niche by prescribing the manner in which property already in custodia legis or in the hands of a public officer may be subjected to attachment. The Rule harmonises the competing interests of decree-holders, judgment-debtors, custodial courts/public officers, and third-party claimants, while safeguarding the integrity of judicial and administrative custody. Recent judicial pronouncements, particularly the Supreme Court’s decision in Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel (2022), have revitalised debates on the procedural rigour and territorial reach of Rule 52. This article undertakes a critical analysis of the Rule, contextualising it within the broader execution framework and examining its judicial exposition.

2. Legislative Framework

Order XXI Rule 52, CPC: “Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued.
Proviso: Where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, shall be determined by such Court.”

The Rule must be read conjunctively with Section 60 (property liable to attachment), Section 64 (effect of attachment), Section 73 (rateable distribution), and cognate rules such as Rule 46 (attachment of debts), Rule 46A–46I (garnishee regime introduced in 1976), Rule 43 (movables in possession of the judgment-debtor) and Rule 54 (immovables). Together, they fashion a graduated hierarchy of attachment mechanisms calibrated to the nature and situs of the property.

3. Historical Evolution and Rationale

Rule 52 traces its ancestry to Section 272 of the Code of 1882. The raison d’être is twofold: (i) to respect the principle of custodia legis—no court ought to interfere directly with property in custody of another court; and (ii) to confer upon public officers an administratively viable notice-based procedure, thereby avoiding disruptive physical seizure. The proviso imports the equitable doctrine of dominabitur forum rei, assigning disputes over priority to the court already in seisin of the res.

4. Key Judicial Pronouncements

4.1 Supreme Court

  • Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel (2022)[1]—The Court underscored that the garnishee-centric safeguards contained in Rules 46 and 46A–46I are “mandatory” and that Rule 52 operates in tandem with, not in derogation of, that regime. Any shortcut by the executing court, such as issuing a direct payment order without prior attachment, was declared ultra vires.
  • Allahabad Bank v. Canara Bank (2000)[2]—Though concerned with the RDB Act, the Court highlighted the exclusive jurisdiction of forums previously seised of property, reinforcing the normative core of Rule 52 that custodial courts retain control over property under their charge.
  • Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (1996)[3]—While primarily on corporate veil, the judgment employs Rule 52 procedure to attach assets held by the Court for equitable distribution, illustrating the Rule’s utility even in contempt-driven contexts.

4.2 High Courts

  • S.N. Sunderson & Co. v. Harbans Singh Sobti (Delhi 1971)[4]—Held that a notice under Rule 52 cannot be issued to a court/public officer outside the territorial jurisdiction of the issuing court, preserving federal comity.
  • Laxmi Narain v. Ram Kumar Suraj Bux (Rajasthan 1970)[5]—Addressed multiple competing attachments served under Rule 52; the court emphasised that failure to transfer execution to the custodial court may subvert Section 73 rateable distribution.
  • Sadhasiva Reddiyar (Deceased) v. K. Chinnaraji (Madras 2021)[6]—Clarified that “money” in custody of a public officer falls within Rule 52 read with Section 60; rejection of execution on contrary assumption was set aside.
  • Pattisapu Anantha Bhaskara Murthy v. Madala Sri Venkata Ramana Murthy (AP 2022)[7]—Demonstrated the interplay between Rule 52 attachment and Section 64’s embargo on post-attachment alienations, especially vis-à-vis subsequent mortgages.

5. Procedural Nuances

5.1 Mechanics of Notice

Attachment is effected solely by service of a judicial notice. Physical seizure is impermissible because the property is, by definition, under lawful custody. Compliance by the custodial court/public officer converts the property into a judicially frozen asset pending further orders, aligning with the Supreme Court’s articulation in Bhagyoday.[1]

5.2 Territorial Jurisdiction

Rule 52 is territorially confined; an executing court lacks authority to issue notices beyond its local limits (Delhi High Court in S.N. Sunderson). Where the custodial court is extra-territorial, the correct course is to transfer execution under Section 39 CPC and then proceed under Rule 52. Non-observance results in an “irregular attachment”, susceptible to challenge and potential nullity.

5.3 Priority Adjudication under the Proviso

The proviso vests the custodial court with exclusive competence to resolve inter-se claims of priority or title. In Laxmi Narain, failure of some decree-holders to seek transfer led to fragmented attachments, compelling the custodial court to orchestrate distribution under Section 73. Similarly, Pattisapu affirmed that any private encumbrance post-attachment is void ab initio (Section 64).

5.4 Interface with Garnishee Provisions (Rules 46 & 46A–46I)

Post-1976, garnishee procedures were codified to protect third-party debtors. The Supreme Court in Bhagyoday read Rule 52 harmoniously with this “mini-code”, observing that where the property is a debt and in custody of a public officer (e.g. deposit awaiting disbursal), the executing court must first attach under Rule 46, issue notice to garnishee, and then adopt Rule 52 for transfer of custody.[1]

6. Comparative Assessment with Allied Rules

  • Rule 43—necessitates seizure of movables in the judgment-debtor’s possession; contrarily, Rule 52 eschews seizure due to pre-existing custody.
  • Rule 46—targets debts; attachment is by prohibitory order to the debtor (garnishee), whereas Rule 52 addresses any property physically held by a court or public officer.
  • Rule 54—concerns immovables; notice is served on judgment-debtor and affixed on property, reflecting possessory realities distinct from Rule 52.

7. Contemporary Challenges

(a) Multiplicity of Forums: The co-existence of special tribunals (DRTs, NCLTs) raises questions on concurrent attachments. Allahabad Bank confirms the primacy of special statutes; yet Rule 52 continues to operate where decrees are enforced through ordinary civil courts.
(b) Digital Assets in Custody: With courts increasingly holding electronic deposits (e-courts, SEBI escrow), a modern interpretation of “property” under Rule 52 necessitates statutory clarification.
(c) Delay and Efficiency: The Madhya Pradesh High Court in Dharmendra Kumar Jain v. Harpal Singh (2023)[8] directed executory completion within six months, underscoring the need for expedition even under Rule 52 scenarios.

8. Recommendations

  1. Amend Order XXI to expressly allow electronic service of Rule 52 notices on custodial courts/public officers, harmonising with the Information Technology Act, 2000.
  2. Introduce a uniform national protocol for inter-court communication when property is under custody outside executing court’s territorial limits, mitigating the jurisdictional quandary highlighted in S.N. Sunderson.
  3. Clarify, by legislative note or Supreme Court practice directions, the sequential interplay between Rules 46A–46I and Rule 52 to avoid procedural shortcuts.

9. Conclusion

Order XXI Rule 52 continues to be an indispensable procedural tool in the arsenal of decree-holders, preserving judicial custody while facilitating execution. The Supreme Court’s recent reinforcement of its mandatory character, combined with High Court jurisprudence on territorial and priority issues, reaffirms the Rule’s doctrinal coherence. Yet, evolving commercial realities and digitalisation demand responsive statutory and procedural refinements to ensure that Rule 52 remains fit for purpose in the twenty-first century.

Footnotes

  1. Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 SCC OnLine SC 1704.
  2. Allahabad Bank v. Canara Bank, (2000) 4 SCC 406.
  3. Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622.
  4. S.N. Sunderson & Co. v. Harbans Singh Sobti, ILR (1972) 1 Delhi 263.
  5. Laxmi Narain v. Ram Kumar Suraj Bux, 1970 SCC OnLine Raj 44.
  6. Sadhasiva Reddiyar (Decd.) v. K. Chinnaraji, 2021 SCC OnLine Mad 11650.
  7. Pattisapu Anantha Bhaskara Murthy v. Madala Sri Venkata Ramana Murthy, 2022 (AP HC).
  8. Dharmendra Kumar Jain v. Harpal Singh, 2023 SCC OnLine MP (HC).