Court’s Decision
The Delhi High Court disposed of a petition filed by the judgment debtor challenging the issuance of a warrant of attachment for a residential property, which had already been declared exempt under Section 60(c) of the Code of Civil Procedure. The Court directed the petitioner to move an appropriate application before the Executing Court for recall of the warrant and held:
“The order with respect to warrant of attachment of said immovable property shall remain in abeyance, if not already executed, till tomorrow…”
The Court made it clear that it had not adjudicated on the merits of the execution proceedings.
Facts
The petitioner, a judgment debtor, approached the High Court aggrieved by an order passed by the Commercial Court, Karkardooma, in an execution petition. The decree holder had filed an application under Order XXI Rule 54 of the Code of Civil Procedure, 1908, seeking attachment of the judgment debtor’s immovable property — a residential flat situated at Vardaan Apartment, I.P. Extension, Patparganj, Delhi.
On 15 January 2025, the Executing Court noted that the property was the residential house of the judgment debtor and was, therefore, exempt from attachment under Section 60(c) of the CPC. Based on this observation, the decree holder sought time to identify other attachable properties.
However, when the matter was again taken up on 11 July 2025, the same Executing Court, without addressing or recalling its earlier observation, issued warrants of attachment for the same property.
The petitioner contended that this amounted to a review of the earlier judicial order by the Executing Court, which was impermissible under law. The matter was brought before the Delhi High Court.
Issues
- Whether the Executing Court could issue a warrant of attachment for a property it had earlier held to be exempt under Section 60(c) CPC?
- Whether the act of issuing a warrant without recalling the prior order amounts to judicial impropriety or review by implication?
- What is the appropriate remedy available to the judgment debtor in such circumstances?
Petitioner’s Arguments
The petitioner submitted that once the Executing Court had already observed, on record, that the residential property in question was exempt from attachment under Section 60(c) of the CPC, there was no jurisdictional authority to pass a subsequent order attaching the same property.
It was further argued that:
- The order passed on 11 July 2025 was contrary to the record and amounted to a review of the earlier decision without any formal application or procedural compliance.
- Such a course of action was impermissible and unfair.
- Although a bailiff had been appointed for executing the warrant on 1 August 2025, the property had not yet been attached, giving the Court an opportunity to intervene.
Respondent’s Arguments
Despite service of advance notice, none appeared on behalf of the decree holder. Hence, no arguments were recorded from the respondent side. The Court proceeded in the absence of representation from the decree holder.
Analysis of the Law
Section 60(c) of the Code of Civil Procedure, 1908, provides immunity to certain properties from attachment and sale in execution of a decree. It explicitly exempts residential houses owned and occupied by judgment debtors, especially when not used for commercial purposes.
The High Court, while not making any observation on merits, implicitly affirmed that once such an exemption is recorded by the Executing Court, the same Court cannot override its own earlier decision without due process. The issuance of a fresh warrant of attachment without recalling the earlier finding runs contrary to principles of judicial discipline and finality of interlocutory orders.
The petitioner was directed to seek recall of the warrant from the Executing Court, reinforcing the procedural route for redressal.
Precedent Analysis
While the Court did not cite case law explicitly, the principles it relied upon are well grounded in established precedents. Notably:
- Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622: This case dealt with the execution of arbitral awards and jurisdiction, emphasizing the role of procedural compliance.
- Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423: Held that judicial orders cannot be reviewed except through appeal or statutory mechanism; the power of review is not inherent.
These principles support the argument that an Executing Court cannot vary or override its earlier judicial conclusions without a formal recall or review.
Court’s Reasoning
Justice Manoj Jain noted that the judgment debtor had not participated in the execution proceedings so far, but given that the Executing Court had already recorded the exemption under Section 60(c) CPC, the issuance of attachment warrant for the same property raised serious procedural concerns.
The Court considered the fact that the bailiff’s appointment had not yet led to actual execution of the warrant and directed that:
- The petitioner should move an application before the Executing Court seeking recall of the warrant.
- Until then, the warrant of attachment would remain in abeyance, ensuring that the petitioner’s residential property was not wrongfully attached.
The Court clarified that it was not making any observations on the merits of the dispute and disposed of the matter accordingly.
Conclusion
The Delhi High Court directed that the warrant of attachment issued by the Executing Court against the residential property of the judgment debtor shall remain in abeyance until the petitioner moves an application for recall before the Executing Court. The Court exercised restraint and ensured that procedural fairness and respect for earlier judicial orders were maintained.
Implications
- Residential Homes Protected: The judgment affirms the legal protection offered to personal residential homes under Section 60(c) CPC.
- Procedural Fairness Reinforced: The Court’s intervention ensures that judicial findings cannot be overridden without due process or review.
- Opportunity for Rectification: The High Court’s direction allows the petitioner to seek recall through proper legal channels instead of outrightly quashing the attachment.
Case Law Referred
Although no specific case citations were made in the judgment, the legal basis aligns with principles from:
- Radhey Shyam v. Chhabi Nath: Emphasizing that judicial orders must be reviewed only through lawful mechanisms.
- Sundaram Finance Ltd. v. Abdul Samad: Affirming procedural jurisdiction in execution proceedings.
FAQs
Q1. Can a judgment debtor’s home be attached in execution proceedings?
No. Under Section 60(c) CPC, residential homes are exempt from attachment unless used for commercial purposes or specifically allowed by law.
Q2. Can an Executing Court override its own earlier decision?
No. Once an Executing Court records a finding, it must formally review or recall it through proper procedure; it cannot override it through subsequent inconsistent orders.
Q3. What should a party do if an attachment order violates an earlier exemption?
The party should immediately approach the Executing Court with an application for recall and may seek interim protection from the High Court if needed.
