To attach a bank account in execution you file an execution petition before the court that passed the decree, give the bank's name and the account particulars you know, and ask the court to issue a garnishee order under Order XXI of the Code of Civil Procedure 1908 to the branch. The court issues notice to the bank and to the judgment-debtor; the bank must then hold the balance up to the decretal amount and pay it into court, unless the account-holder objects on a ground the law protects.
The petition, the particulars and the notice to the bank are the three things that decide whether the money is actually reached.
Before you start
- The certified copy of the judgment and the decree, and proof that the decree is executable — the time for appeal has run, or the appeal has failed.
- The exact decretal amount, and credit for anything already paid or recovered, so the court knows the figure to be attached.
- Every particular of the account you can find: the bank, the branch, the account number, and the account-holder's name as it stands with the bank.
- Any address, PAN or other identifier of the judgment-debtor that helps trace the account if the number is not known.
If you do not yet know where the judgment-debtor banks, the execution petition can first ask the court to call for the information; the account itself can be attached once it is identified.
Steps
- Confirm the decree is executable. File the execution petition within the period the Limitation Act 1963 allows for execution, failing which you must explain the delay.
- File the execution petition under Order XXI CPC. State the decretal amount, the amount still due, and the mode of execution you seek — attachment of the bank account.
- Give the court every particular you have. A garnishee order cannot be issued against an account the court cannot describe. Bank, branch and account number are the minimum.
- Ask for a garnishee order. Under Order XXI Rule 46A CPC the court, after notice to the judgment-debtor and an opportunity to the bank, may order the bank to pay over the balance standing to the credit of the account.
- Serve the notice on the bank. Once the branch is served, it must retain the balance up to the amount ordered and may not let the account-holder withdraw it.
- Hear the account-holder's objections. The judgment-debtor is entitled to be heard and may show that the account is not his, that it is a joint or trust account, or that the funds are of a kind the law exempts.
- Respect the protected funds. Section 60 CPC exempts certain property from attachment, including a protected portion of salary and the pension and gratuity of government pensioners. These exemptions apply to salary and pension credits in a bank account just as they would to any other attachment.
- Get the money paid into court. The bank pays the attached sum to the court, which then releases it to the decree-holder after satisfying itself.
Documents to keep
- The certified copies of the judgment and decree.
- The execution petition with its numbered annexures.
- The garnishee order and the notice served on the bank.
- Proof of service on the bank and on the judgment-debtor.
- The bank's reply or statement of the balance held.
- Receipts for every sum received, so that the decree is not executed twice over.
What goes wrong
- Naming the wrong branch, so the notice reaches an office that does not hold the account.
- Giving an account number without the account-holder's name, which the bank refuses to act on.
- Filing execution after limitation has expired and then having to explain the delay.
- Attaching the whole salary or pension credit without accounting for the protected portion, which the judgment-debtor will object to.
- Confusing this with an attachment before judgment, which is a different and earlier remedy.
Common questions
How is this different from an attachment before judgment?
Attachment before judgment under Order XXXVIII CPC is an interim protection taken while the suit is still being tried, to stop the defendant from disposing of assets. A garnishee order in execution comes after the decree, when the debt is already established and you are only collecting it.
What is a garnishee order?
It is the court's order to a third person — here the bank — who holds money belonging to the judgment-debtor, directing that the money be paid into court instead of to the account-holder. The bank is the garnishee.
Can the bank refuse to act on the notice?
Once a valid order is served, the bank must retain the balance up to the amount specified. A bank that ignores it exposes itself to liability to the court. If the particulars are wrong or the branch holds no such account, the bank says so in its reply.
Can salary and pension in the account be attached?
Only to the extent the law allows. Section 60 CPC protects a portion of salary and the pension and gratuity of government pensioners; the court is told what is protected so the attachment is confined to the balance. See our recovery suits and civil litigation services, and the samples in our civil litigation formats.
FileX Advocates & Legal Consultants, Kolkata, handles these matters before the Calcutta High Court, the City Civil and Sessions courts, magistrate, and the civil and execution courts. Call +91 7439811422 or WhatsApp us for a free first consultation.