Order 22 Rule 36 - 50
Attachment of immoveable property
Where the property to be attached is agricultural produce, you attach the property by fixing a warrant of attachment in the field where the property is growing or where it is stored or where the JD resides or works for gain. If it involves share of dividend in a company issue a prohibitory order against the person in whose name the share is registered. The Order prohibits the transfer of the share or receipt of any dividend on that share.
If the property is moveable in possession of a 3rd Party, attachment is with prohibited order against 3rd party.
Immoveable property – attachment is by registering a prohibitory order against JD in whose name the property is registered. The order prohibits the JD from transferring, charging the property in any way and prohibits 3rd parties from transferring the property, the order is against the JD or any party with an interest. The attachment against immoveable becomes complete and effective when a copy of the prohibitory order is registered against the title.
Attachment of Salary – firstly one has to issue a notice to show cause served on the JD and if the JD does not show sufficient cause, then the court will make an order attaching one third of the salary of the JD and the order will require that the employer deducts one third of the salary and forfeits to the court or the advocate of the Decree Holder if the court so directs. The reasoning is that one third is what a person saves and therefore can afford.
The procedure when one wants to sell immoveable property is lengthy and complex and one has to abide by it. When one wants to attach immoveable property one has to register the prohibitory order to ensure that JD and third parties do not interfere with the property. Then one has to actualize the sale.
One needs to establish if there are third parties with an interest in that property like a financial institution, the interest must be noted and catered for by fixing the matter with deputy registrar for settlement of terms of sale to establish value of property and what other parties have interest in the property and how the interests can be catered for and when and how the property will be sold. The court will then give an indication on how the property is to be sold subject to a reserve price. the court may also wants to find out how much is owed and then it may direct that after the sale the third party interests be catered for and the net sum is what will be available in settling the debt. If there is a charge registered against the title, the same may be discharged if the court directs and if the chargee is holding the title they must release title to facilitate transfer.
There could be outstanding statutory payment which must be catered for and the court ought to know how much is owed in land rent and rates to the government and the courts must direct how the interests should be catered for.
Order 22 Rule 36 - 50