ACTS and Rules                                                                                                 Index of Rule, 1973

The Delhi Co-Operative Socities Rule, 1973

 

CHAPTER X

EXECUTION OF AWARD DECREES, ORDERS AND DECISIONS

 

PART - I

Enforcement of Charge

 

110. Application under section 70

1. Every application under section 70 shall be made in Form 19 and shall be signed by a person authorised by the committee of a cooperative society. It shall be accompanied by an inventory of the property to be sold containing a reasonably accurate description of the same

 

2. No application under sub-rule (1) shall be entertained unless the society making the application deposits the necessary fee for expenses of sale of the property which shall be 5 per cent of the outstanding debt or demand of the society against the defaulter in respect of which the application is made irrespective of the fact whether that such amount is recovered or not by sale of the property subject to charge.

 

3. On receipt of application referred to in sub-rule (1) the Registrar or any other officer authorised by him in this behalf in writing by special or general order (hereinafter referred to as the Sales Officer, which shall include his successor or assigns) shall, if he is satisfied that the particulars set forth in the application are correct and prepare a demand notice in duplicate in Form 20, setting forth the name of the member, past member or the nominee, heir or legal representative of the deceased member, the amount due from him together with interest and cost, if any, and the description of the property or interest in property for the sale of which the application hs beep made by the society, and calling upon him to remit within seven days from the date of service of the notice total amount due under the demand. The Sales Officer shall serve or cause to be served the demand notice upon the member, past member, or the nominee, heir or legal representative of the deceased member if he is present or upon some adult male member of his family or upon his authorised agent, or when such service cannot be effected, shall affix or cause to be affixed a copy of the demand notice on some conspicuous part of his residence or the place where the property subject to charge is kept. If the member or past member or nominee, heir or legal representative of the deceased member, fails to pay the debt or outstanding demand within the period aforesaid, the Sales Officer shall proceed to sell the property.

 

4. The provisions of rules in Part III of this Chapter shall, in so far as they are not repugnant to the subject or context, apply to the safe of the property or interest in the property as if the society which made the application is a decree holder and the member, past member or the nominee, heir or legal representative of the deceased member, is a defaulter of judgment debtor.

 

 

PART-II

 

Execution of Decision, Award or Order by the Collector according to the provisions of Land Revenue Code

 

111. Procedure for Execution by the Collector.

1. Where any decision, award or order providing for the recovery of money is executable by the Collector under clause (a) of section 71, it shall be executed by a Revenue officer empowered by the Collector by-general is special order to do so (hereinafter referred to as the "Recovery Officer" which shall include his successors and assigns) in accordance with the provisions of the Punjab Land Revenue Act (Act XVII of.1887)-which shall include any other Act for the time being in force in the Union Territory of Delhi relating to recovery of land revenue, the rules, orders or regulations issued there under from time to time (hereinafter referred to as the "Land Revenue Code").

 

2. When any decree holder desires to have the decree executed through the Collector under clause (a) of section 71, he shall apply to the Registrar in Form 21 for the issue of a certificate for the recovery of the excretal amount as arrears of land revenue. The application shall be delivered in the office of the Registrar personally and a receipt obtained or sent by registered post.

 

3. Soon after the receipt of the above application, the Registrar shall call for original records of the arbitration and shall check up if the decision or the award had been given in accordance with the rules and shall check up contents of the application with reference to the relevant original records of the case. If he is satisfied about the correctness of the award/decision and the application, he or any officer authorised by him shall issue certificate in Form 22 the degree holder. In case the Registrar is satisfied that the decision/award is in contravention of the provisions of the Act & Rules, he may refer the arbitration case back to the arbitrator for necessary rectifications(s). (Amended on 9.9.83)

 

4. Within a period of 60 days soon after the issue of the certificate referred to in sub-rule (3) the decree holder shall apply in Form 23 of the Recovery Officer delivered in person and a receipt obtained or sent by registered post. The application shall be accompanied by:

(a)     A certified copy of the award, and

(b) original certificate issued by the Registrar under sub-rule (3)

(c) receipted pay-in-slip for deposit of executive fee in the State/Bank of India.

Provided that the Registrar may extend the period of 60 days after hearing the decree holder in person for the reasons for delay.

 

5. If the application mentioned in sub-rule (4) is complete in all respect and is accompanied by alt the documents, the same shall be entered in the Demand Register and given a distinctive case number and shall be dealt with by the Recovery Officer as if it is a suit filed by the decree-holder against the judgment-debtor. This case number shall be quoted in alt process issued in the case from time to time. He shall thereafter issue various processes for the recovery of the decretal amount according to the Land Revenue Code.

 

6. The decree holder shall deposit in the "Settlement and Execution Expense Fund' an initial lump sum fee of Rs. 25/- for issue of process in the execution case. There after, a fee of 5 per cent shall be charged on all sums recovered by the Recovery Officer from the judgement debtor, which be credited to the foresaid fund.

 

112. Accounting Procedure

1. All amounts recovered from the, judgement debtors by the Recovery Officer shall first be deposited in the Current account to be kept in his official designation in the State Bank of India, which shall be operated by him. The payment to decree holder of all amounts recovered on his behalf during the course of execution proceedings shall be made by the Recovery Officer by crossed cheque drawn on the above current account against the deposits relating to the decree holder after deducting the recovery fee of 5 per cent of the gross amount recovered, with in 7 days of the receipt of amount. (Amended on 24.5.82)

 

2. The Recovery Officer shall keep separate personal ledger account of each decree-holder In which all the relevant retails of recoveries made, with names-or defaulters from whom made, payments made to decree-holder from time to time and expenses recovered shall be entered. The Recovery officer in token of its correctness shall attest individual entries in these ledgers.

 

3. A separate account of receipt and issue of receipt books shall be kept by the Recovery Officer. The receipt books shall remain in the personal safe custody of the Recovery Officer.

 

4. Each bailiff shall deposit the amount recovered by him in the State Bank of India in the current account of the Recovery Officer. Each bailiff shall render to the accountant appointed by the Recovery Officer a true and faithful account of all receipts and deposits made by him that shall be entered in the cashbook with full clarity and alt the entries made in the cashbook shall then be attested by the Recovery Officer. The Accountant shall bring any unusual delay in deposit of the amount in the State Bank by any bailiff to the personal notice of the Recovery Officer.

 

6. The Recovery 0ffic.er shall be responsible for the maintenance of true and correct accounts of the recoveries and deposits, he shall also act as the controlling officer in respect of the staff maintained and paid out of the "Settlement and execution Expenses Fund" in accordance with the regulation of the Fund.

 

113. Mode of Payment of Decretal Amount.

1. All money payable under the certified award shall be paid as follows:

(a) with the Recovery Officer or with any person authorised by him against official receipt.

(b) Out of the court to the decree4iolder. Where any payment is made tinder clause (a) notice of payment shall be made by the Recovery Officer to the decree holder.

 

2. Where any money payable under (he Award under execution by the Recovery Officer is paid by the Judgement debtor out of court to the decree-holder or the award is, otherwise adjusted in whole or in part to the satisfaction of the decree-holder the decree-holder shall certify payment or adjustment to the Recovery Officer and he shall record such payment or adjustment in the personal ledger account maintained by him.

 

3. The judgement debtor may also inform the Recovery Officer of such payments or adjustment* and apply to him to issue notice in From 24 to the decree-holder to show cause one day to be fixed by the Recovery Officer, why which payment or adjustment should not be recorded in the personal ledger account of the decree-holder as having been paid or adjusted in the execution proceedings, and if after service of such notice, the decree holder fails to show cause, the Recovery Officer may record the payment and/or adjustment in the above manner. A payment or adjustment. Which has not so been recorded as aforesaid, shall not be recognised by the Recovery Officer executing the award.

 

114. Coat of Execution

The Recovery Officer executing the award may recover in addition to the decretal amount from the judgement-debtor debtor the cost of execution as arrears of land revenue and pay such amount to the decree-holder.

 

115. Transfer of Decrees

Where any property to be sold in realization of any decree is situated outside the Union Territory of Delhi, the decree shall be forwarded for execution in accordance with the provisions of the Revenue Recovery Act, 1890 (Act 1 of 1890) to the Collector of that District where the property of judgement debtor/defaulter is situated.

 

 

 

 

PART-III

Execution on Decision, Award or order by the Registrar

 

116. Procedure in Execution.

1. Where any decree-holder desires to have the decree executed under provisions of clause (b) of section 71, he shall apply to the Registrar or the officer authorised by the Registrar in this behalf by a special or general order (hereinafter referred to the "Recovery Officer"), in Form 25, which shall be signed by decree-holder. The decree-holder shaft indicate whether he desires to proceed against the person of the defaulter or against his movable or immovable property or both and shall state in what way he wants the assistance of the Registrar according to the Act and rules.

 

2. On receipt of the application referred to in sub-rule (1), the Recovery Officer shall call for original record and shall verify the correctness and genuineness of the particulars set forth in the application with the records.

 

3 Without prejudice to the provisions of the Code of Civil Procedure/ 1909 (Act No. V of 1908) the, Recovery Office shall, on being satisfied about the correctness and genuineness of the application received by him, order execution

(a) by delivery of any property specifically decreed.

(b) by attachment and sale or sale without attachment of any property.

(c) by arrest and detention in person.

(d) in such other manner as the nature of relief granted may require.

 

4. Wherein these proceedings under clause (b) of section 71, any person requires the issue of any process, or object to any process issued or proposed to be issued, or requires the adjournment of any proceedings, he shall pay the fee as fixed in schedule IV which may be revised by the Registrar from time to time. Thereafter the Recover Officer shall issue processes. The provisions of section 36 to 74, 135, 135A and Order XXI in the First Schedule of the Code of Civil Procedure, 1908 (Act V of 1908) shall mutatis mutandis apply to the executions ordered under clause (b) of section 71. The decree holder shall indicate whether he wishes to proceed in the first instance against the property of the defaulter or against his person.

 

5. Without prejudice to the generality of the foregoing sub-rule, a demand notice stating therein the decree-holder shall be prepared in duplicate in Form 26 by the application filed by the decree-holder and the demand notice to the defaulter.

117. Order in which proceedings shall be taken.

Unless the decree-holder has indicated under sub-rule (4) of ruler 11Gthe.OFdecin-wMchthe property of the defaulter shall be proceeded against, the execution shall ordinarily be taken in the following manner, namely:-

(i) Movable property of the defaulter shall be first proceeded against, but nothing' in this clause shall-preclude the immovable property being proceeded against simultaneously in case of necessity.

(ii) If there is no movable property, or if the sale proceeds of the movable property, or properties attached and sold are insufficient to meet in full the demand of the decree-holder, the immovable' property mortgaged to decree holder or other immovable property belonging to the defaulter, may be proceeded against.

 

118. Rules for seizure arid sale of movable property.

In the seizure and sale of movable property, the following rules shall be observed:

(i) The Recovery Officer shall, after giving previous notice to the decree-holder, proceed to the village where the defaulter resides or the property to be distained is situated and serve the demand ......... upon him in Form 27. If the demand together with the interest and all expenses is not at once paid, the Recovery officer shall make the distress and shall immediately delivery to the defaulter a list or inventory of the property distained and an intimation of the place, day and hour at which the distrained property will be brought to sale if the amounts due are not previously discharged.

(ii) After the distress is made, the Recovery Officer may arrange for the custody of the property attached with the decree-holder or otherwise.

(iii) If the, recovery Officer requires the decree-holder to undertake the custody of the property, he shall be bound to do so and any loss incurred owing to his negligence shall be made good by the decree-holder. If the attached property is livestock, the decree-holder shall be responsible for providing the necessary food therefore.

(iv) The Recovery Officer may, at the instance of the defaulter or of any person claiming an interest in such property, leave it in the village or place where it was attached, in the charge of such defaulter or person if h6 enters into a bond in Form 28 with one or more sufficient sureties for the production of the property at the place of sale when called for.

(v) The distress shall be made after sunrise and before sunset and not at any other time.

(vi) The distress levied shall not be excessive, that is to say, the property distained shall be as nearly as possible proportionate to the sum due by the defaulter together with interest and all expenses incidental to the distraint, detention and sale. .

(vii) If crops are ungathered products of the land, belonging to a defaulter are attached, the Recovery Officer may cause them fore sold when fit for reaping or gathering or at his option may cause them to be reaping or gathered in due season and stored in proper place until sold. In the latter case, the expenses of reaping or gathering and storing such crops or products shall be defrayed by the owner upon his redeeming the property or from the proceeds of the sale in the event of its being sold.

(viii) The Recovery Officer shall not work the bullock or cattle, or make use of the goods or effects distrained, and he shall provide the necessary food for the cattle livestock, the expenses attending which shall be defrayed by the owner upon his redeeming the property, or from proceeds of the sale in the event of its being sold.

(ix) The Recovery Officer may force upon any stable, cow house, grainary, godown, out house or other building and he may also enter any dwelling house the outer door of which may be open the may break open the door of any room in such dwelling house for the purpose of attaching property belonging to defaulter and lodged therein, provided always that it shall not be lawful for the Recovery Officer to break open or enter any apartment in such dwelling house appropriated for the occupation of women except as hereinafter provided.

(x) Where the Recovery Officer may have reason to suppose that the property of a defaulter is lodged within a dwelling house the outer door of which may be shut, or within any apartments appropriate to women which, by the usage of the country are considered private, 'the Recovery Officer shall represent that fact to the officer-in-charge of the nearest police station. On such representation, the officer-in-charge of the said station shall send a Police Officer to the spot in the presence of whom the Recovery Officer may force open the outer door of such dwelling house in like manner as he may break open the door of any other- room within the house. The Recovery Officer may also in the presence of the Police Officer, after due notice given for the removal of women and, after furnishing means for their removal in suitable manner (if they be women of rank who according to the customs of the country cannot appear in public) enter the rooms for the purpose of distaining their property of the defaulter, if any, deposited therein but such property, if found, shall be immediately removed from such rooms, after which they shall be left free-to them former occupants.

(xi) The Recovery Officer shall on the day previous to and on the day of sale cause proclamation in form 29 of the time and place of the intended sale to be made by beat of drum in the village in which the defaulter resides and in such other place or places as the Registrar may consider neic66irary to give due publicity to the sate.

(xii) No sale shall take place until after the expiration of the period of fifteen days from the date on which the sale notice has been served or affixed in the manner specified in clause (i), provided {hat where the property seized is subject to speedy and natural day, or where the expenses of keeping it in custody are likely to exceed Ms value, the Recovery Officer may sell it at any time before the expiry of the said period of fifteen days unless the amount due is sooner paid.

(xiii) At the appointed time, the property shall be put, up in one or more lots as the Recovery Officer may consider advisable, and shall be disposed off to the highest bidder: Provided that it shall be open to the Recovery Officer to decline to accept the highest bid where the price offered appears to be unduly low or for other sufficient reasons. Provided further, that the Registrar or the Recovery Officer may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons for such adjournment. Where a sate is so adjourned for a longer period than seven day a fresh proclamation under clause (xi) shall be made unless the defaulter consents to waive it

(xiv) Where the property is sold for more than the amount due, the excess amount after deducting the interest and the expenses of process and the other charges shall be paid to the defaulter.

(xv) The Property shall be paid for in cash at the time of sale or as soon thereafter as the officer holding the sale shall appoint and the purchaser shall not be permitted to carry away any part of the property until he has paid for it in full.

(xvi) Where the purchaser fails in the payment of the purchase money, the property shall be resold.

(xvii) Where it is proved to the satisfaction of any civil court of competent jurisdiction that any property which has been distrained under these rules has been forcibly or clandestinely removed by any person, the court may order forthwith such property to be restored to the Recovery Officer.

(xviji) Where prior to the day fixed for the sale, the defaulter or any person acting on his behalf or any person claiming an interest in the property attached, pays the full amount due including interest and other costs incurred in attaching the property the Recovery Officer shall cancel the order of attachment and release the property forthwith.

(xix) No member of the committee of a society having the debt or outstanding demand for which the sale is being made, shall without the express permission of the Registrar bid either directly or indirectly for the purchase of the property which is subject to charge under section 36.

(xx) No officer or other person having a duty to perform in connection with any sale shall, whether directly or indirectly bid for, acquire or attempt to acquire any interest in the property sold.

(xxi) Where the property is sold, of which actual seizure has been made. it shall be delivered to the purchaser. Where the property sold is in the possession of any person delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him delivering possession of the property to any other person except the purchaser.

 

119. Attachment of salary or allowances of public officer or of servant of a Railway Administration or Local Authority

Where the movable property to be attached is the salary or allowance or wages of a public officer or of a servant of railway administration or local authority or a. firm or accompany, the Recovery Officer may order in Form 30 that the amount shall, subject to the provisions of section 60 of the Code of Civil Procedure, 1908 (Central Act V of 1908), be with held from such salary or allowance or wages either in one payment or by monthly installments as the Recovery Officer may direct and upon notice of the order, the officer or other person whose duty is to disburse such salary or allowances or wages Shall withhold and remit to the Recovery Officer, the requisite amount.

 

120. Attachment of Decree.

1. Where the property to be attached is a decree either for the payment of money or for, sale in enforcement of a mortgage or charge the attachment shall be made-

(a) if the decree sought to be attached was passed by the Registrar or by any persona whom dispute was referred by the Registrar under section 61, on the order of the Registrar on the application of the Recovery Officer

(b) if the decree sought: to be attached was passed by a court and has not been sent for execution to any other court, by the issue to such court of a notice by the Recovery Officer, requesting such Court to stay the execution of its decree unless and until-

(i) the Recovery Officer cancels the notice, or

(ii) the holder of the decree sought to be executed by the Registrar or the judgment debtor thereof applied to the Court receiving such notice to execute its own decree and

(c) if the decree sought to be attached is pending execution in a Court which did not pass the Some, by the Recovery Officer Seeking to attach such decree in execution, sending the notice referred to in clause (b) to such Court, where upon the provisions of that clause shall apply in the same manner as if such Court had passed the decree and the said notice had been sent to it in pursuance of the said clause.

 

2. Where the Registrar makes an order under clause (a) of sub-rule (1) or when a Court receives a notice under clause (b) or (c) of the said sub-rule, the Registrar or the Court shall, on the application of the decree-holder who has the dectfee attached or his defaulter proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree being executive by the Recovery Officer.

 

3. The holder of a decree sought to be executed by the attachment of another decree of the nature specified in such rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

 

4. The holder of a decree attached under this rule shall give the court or the Recovery Officer executing the decree such information and aid as may reasonably be required.

5. On the application of the holder of a decree sought to be executed by the attachment of another decree, the Recovery Officer shall give notice of such order to the judgement debtor bound by the decree attached, and no payment or adjustment of the attached decree made by the judgement debtor in contravention of such order after receipt of notice thereof, shall be recognised so long as the attachment remains in force.

 

121. Attachment of debt, share and other property not in possession of defaulter.

1. Where the movable property to be attached is

(a) a debt due to the defaulter in question.

(b) a share in the capital of a' corporation or a deposit invested therein, or

(c) other movable property not in the possession of the defaulter except property deposited in or in the custody of any Civil Court, the attachment shall be made by a written order signed by the Recovery Officer prohibiting:-

(i) in the case of the debt, the creditor from recovering the debt and the debtors from making payment thereof.

(ii) in the case of the share or deposit, the person in whose name the share or the deposit may be standing from transferring the share or deposit or receiving any dividend or interest thereon.

(iii) in the case of the other movable property except as aforesaid, the person in possession of it from giving it over to the defaulter.

2. A copy of such order shall be sent in the of the debt of the debtor, in the case of the share or deposit, to the proper officer of the corporation and in the case of the other movable property, (except as aforesaid), to the person in possession of such property. As soon as the debt referred to in clause (a) of sub-rule (1) or the deposit referred to in clause (b) of that sub-rule matures, the Recovery Officer may direct the person concerned to pay the amount to him. Where the share is not withdrawable, the Recovery Officer shall arrange for it sate through a broker. Where the share is withdrawable, its value shall be paid to the Recovery Officer as soon as it becomes payable, in the case of the other movable property referred to in clause (c) of such-rule (1), the person concerned shall place it in the hands of the Recovery Officer, as Soon as it becomes deliverable to the defaulter.

 

122. Procedure in attachment and sale of Immovable Property.

In the attachment and sale or sale without attachment of immovable property, the following rules shall be observed;-

(i) The application presented under rule 116 shall contain a description of the immovable property to be proceeded against, sufficient for, its identification and in case such property can be identified by boundaries or number in .record of settlement or survey, the specification of such boundaries or numbers in record of settlement or survey, the specification of such boundaries or numbers-and the specification of the defaulter's share or interest in such property to the best of the belief of the decree-holder and so far as he has been able to ascertain it.

(ii) The demand notice issued by the Registrar under sub-rule (5) of rule 116 shall contain the name of the defaulter, the amount due including the expenses, if any, and the time allowed for payment and in case of non-payment, the particulars of the properties to be attached and sold or to be sold without attachment as the case may be. After receiving the demand notice, the Recovery Officer shall serve or cause to be served a copy of the demand notice Upon the defaulter or upon some adult male member of his family at his usual place of residence, or upon his authorised agent, or if such personal service is not possible shall fix a copy thereof on some conspicuous part of last known residence or on some conspicuous part of the immovable property about to be attached and sold or sold without attachment, as the case may be:

Provided that where the Recovery Officer is satisfied that a defaulter with intent to defeat or delay the execution proceedings against him is about to dispose off the whole or any part of his property, the demand notice issued by the Registrar under sub-rule (5) or rule 116 shall not allow any time to the defaulter for the payment of the amount due by him and the property of the defaulter shall be attached forthwith.

(iii) If the defaulter fails to pay the amount specified in the demand notice within the time allowed, the Recovery Officer shall proceed to attach and sell or sell without attachment, as the case may be the immovable property noted in the application for execution in the manner hereinafter specified.

(iv) Where the attachment is required before sale the Recovery Officer shall, if possible, cause a notice of attachment to be served on the defaulter personally. Where the personal service is not possible, the notice shall be affixed in some conspicuous part of the defaulter's last known residence, if any. The fact of attachment shall also be proclaimed beat of drum or other customary mode at some place on or adjacent to such property and at such other place, or places as the Registrar may consider necessary to give due publicity to the sale. The attachment notice shall set forth that unless the amount due with interest and expenses be paid within the date therein mentioned, the property will be brought to sale. A copy of the notice shall be sent to the decree-holder. Where the Recovery Officer so direct, the attachment shall also be notified by public proclamation in a local newspaper.

(v) Proclamation of sale shall be published by affixing a notice in the office of the Registrar at least thirty days before the date fixed for the sale. Such proclamation shall state the decree-holder and the defaulter, the time and place of sale and also shall specify as fairly and accurately as possible:-

(a) the property to be sold.

(b) any encumbrance to which the property is liable,

(c) the amount for the recovery of which the sale is ordered, and

(d) every other matter which the Recovery Officer considers material for a purchaser to know in order to judge the nature and value of the property.

(vi) When any immovable property is sold under these rules, the sale shall be subject to the prior encumbrances on the property, if any. The decree holder shall, when the amount for the realisation of which the sale is held, exceeds Rs. 100 furnish to the Recovery Officer within such time as may be fixed by him or by the Registrar an encumbrance certified sought to be sold. The time for production of the encumbrance certificate may be extended at the discretion of the Recovery Officer or the Registrar. The sale shall be by public auction to the highest bidder, provided that it shall be open to the recovery officer to decline to accept the highest bid where the price offered appears to be unduly low or for other reasons and provided also that the Recovery officer may in his discretion adjourn the sale to a specified day and hour, recording his reasons for such adjournment. Where a sale is so adjourned for a longer period than seven days, afresh notice shall be issued unless the defaulter consents to waweit. The sale shall be held after the expiry of not less than thirty days calculated from the date on which notice of the proclamation was affixed in the office of the Registrar and the place of sale shall be the village where the property to be sold is situated or such adjoining prominent place of public resort as may be fixed by the Recovery Officer

 

(vii) A sum of money equal to 25 percent of the price of the immovable property shall be deposited by the purchaser in the hands 6f the Recovery Officer at the time of the purchase, and in default off such deposit, the property shall forthwith be resold. ,

 

(viii) The remainder of the purchase money and the amount required for the general stamp for the certificate shall be paid within fifteen days from the date of sale. Provided that the time for payment of the cost of the stamp, may, for good and sufficient reasons, be extended at the discretion of the Registrar up to thirty days from the date of sale.

 

(ix) Provided further that in calculating the amount to be paid under this clause, the purchaser shall be set the advantage of any set-off to which he may be entitled. In default of-payment within the period (mentioned in clause (viii), the deposit may, if the Registrar thinks Fit, after defraying the expenses Of the sale before feired to the Government and the defaulting purchaser shall fore fiet all claims to the property or any part of th6 sum for which it may subsequently be sold.

 

(x) Every resale of immovable property in default of payment of the amounts mentioned in clause (viii) within period allowed for such payment shall be made after the issue of fresh proclamation in the many the period herein before specified for the sale.

 

(xi) Where a decree-holder purchases the property, the purchase money and the amount due on the decree shall be set off against one another, and the Recovery Officer shall enter up satisfaction of the decree in whole or in part accordingly.

 

(xii) Where prior to the date fixed for sold, the defaulter or any person acting on his behalf or any person claiming an interest in the property sought to fie sold tenders payment of the full amount due together with interest and other expenses incurred in bringing the property to sale, including the expenses of attachment, if any the Recovery Officer shall forthwith release the property after canceling, where the property has been attached, the order of attachment.

 

123. Application to set aside sale on deposit.

Where the Recovery Officer, any person either owning such property or holding an interest therein by virtue of title acquired before such sale may-apply to have the sale set aside on his depositing with the Recovery Officer-, has sold immovable property

(a) for payment to the purchaser, a sum equal to 2 per cent of the purchase money, and

(b) for payment to the decree-holder, the amount of arrears specified in the proclamation of sale as that for the recovery of which the sale was ordered together with interest thereon and the expenses of attachment, If any, and sale and other cost due in respect of such amount less any amount which may since the date of such proclamation have been received by such decree-holder.

2. If such deposit an application at made within thirty days from the date of sale, the Registrar shall pass an order setting aside the sale and shall repay to the purchaser the purchase money so far as it has been deposited, together with the 2 per cent deposited by the applicant.

Provided that if more persons than one have made deposit and application under this rule, the application of the first depositor to the Recovery Officer shall be accepted.

 

124. Application to set aside sale on ground of irregularity of fraud.

1. At any time within thirty days from the date of the sale of immovable property, the decree holder or any person entitled to share in a rateable distribution of the assets or where interests are effected by the sale; may apply to he Registrar to set aside the sale, on the ground of a material irregularity or mistake or fraud in publishing or conducting the sale.

Provided that no sale shall be set aside on the ground aforesaid unless the Registrar is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud.

 

2. If the application is allowed, the Registrar shall set aside the sale and may direct a fresh one.

 

3. On the expiration of thirty days from the date of sale if no application to have the sale set aside is made under rule 123 or under sub-rule (1) of this rule or if such application has been made and rejected, the Registrar shall make an order confirming the sale.

Provided that if he shall have reason to believe that the sale ought to be set aside not Withstanding that no such application has been made on grounds other than those alleged in any application which has been made and rejected. He may after recording his reasons in writing set aside the sale.

 

4. Whenever the sale of any immovable property is not so confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser.

 

5. After the confirmation of any such sale, the Recovery Officer shall grant a certificate of sale bearing his seal and signature to the purchaser.

 

6. Such certificate shall state the property sold and the name of the purchaser and it shall be conclusive evidence of the fact of the purchase in all courts and tribunals, where it may be necessary to prove It and no proof of the seal or signature of the Recovery Officer shall be necessary unless the authority before whom It is produced shall have reason to doubt its geniuses.

 

125. Delivery of Possession.

Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person not being the defaulter claiming in good faith to be in possession of the property on his own account, from obtaining possession of the immovable property purchased, any court of competent jurisdiction on application and production of the certificate of sale provided for by rule 124 shall cause the proper process to be issued for the purpose of putting such purchaser in possession, in the sarHe manner as if the immovable property purchased has been decreed to the purchaser by a decision of the court.

 

126. Sale of immovable property to be proportionate to that amount due

The Recovery Officer may sell the whole or any portion of the immovable property of a defaulter in discharge of money due provided always that so far as may be practicable, no larger section or portion of the immovable property shall be sold than may be sufficient to discharge the amount due with interest, and expenses of attachment, if any, and sale.

 

127. Private alienation of properly after attachment to avoid

Where an attachment has been made under those rules, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the attachment.

Explanation-: For the purposes of this rule, claims enforceable under an attachment include claims for the retable distribution of assets.

 

128. Receipts for payment of amount due

Every person making a payment towards any money due for the recovery of which application has been made under these rules shall be entitled to a receipt for the amount signed by the Recovery Officer or other Officer empowered by the Registrar. Such receipt shall state the name of the person making the payment and the subject matter in respect of which the payment is made.

 

129. Investigation of claims and objection to attachment of property.

1. Where any claim is preferred to, or any objection is made to the attachment of any property attached under those rules on the ground that such property is not liable to such attachment, the Recovery Officer shall investigate the claim or objection and dispose off it on merit.

 

2. Where the property to which the claim or objection relates, has been advertised for sale, the Recovery Officer may postpone the sale pending the investigation of the claim or objection.

 

130. Determination of attachment.

Where any property had been attached In execution of a decree, but by reason of the decree holders default, the Recovery Officer is unable to proceed further with the application for execution he shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease.

 

131. Attachment in execution of decree of Civil Court and reteable distribution of assets.

Where assets are held by the Recovery Officer and before the receipts of such assets, demand notices in pursuance of applications for execution of decree against the same defaulter have been received from more than one decree-holder and the decree-holder have not obtained satisfaction, the assets after deducting_the cost of realisation, shall be reteably distributed by the Recovery Officer among all such decree-holders in the manner provided is section 73 of the Code of Civil Procedure, 1908 (Central Act V of 1908).

 

132. Mode of making attachment before judgement.

1. Attachment of property prior to award for decree shall be made in the manner provided in the foregoing rule of this Chapter.

2. Attachment made under sub-rule (1) shall not affect the rights existing prior to the attachment of persons not parties the proceedings in connection with which the attachment was made, nor bar any person holding a decree against the person whose property is attached from applying for the sale of property under attachment in execution of such decree

3. Where property is under attachment by virtue of the provisions of this rule and a decree is subsequently passed against the person whose property is attached, it shall not be necessary to file an application for execution of such decree and to apply for re-attachment of the property.

 

133. Effect of attachment

Where an attachment has been made, any private transfer or delivery of the property attached or o) any interest therein and any payment to the judgement debtor of any debt dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation- For the purposes of is rule, claims enforceable under an attachment include claims for the reliable distribution of assets.

 

134. Arrest and detention

1. A judgement debtor may be arrested in execution of a decree at any hour and on any day, and shall as soon as practicable, be brought before the Recovery Officer and his detention may be in the civil prison OF in the Jail.

Provided firstly, that for the purpose of making an arrest under this rule, no dwelling house shall be-entered after sunset and before sunrise.

Provided secondly, that no outer door of a dwelling house shall be broken open unless such dwelling house is in the occupancy of the judgement debtor and he refuses or in any way prevents access thereto, but when the office authorised to make the arrest has duly gained access to any dwelling house he may break open the door of any room in which he has reason to believe the judgement debtors to be found.

Provided thirdly, that, if the room is in the actual occupancy to a women-who is not the judgement debtor and who according to the customs of the country does not appear in public the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and after allowing a reasonable time for her to withdraw, and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest.

Provided fourthly, that where the decree in execution of which a judgement debtor is arrested, is a decree for the payment of money and the judgement debtor pays the amount of the decree and the costs of the arrest to the officer arresting him such officer shall at once release him.

 

2. The Lieutenant Governor may, be notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree other wise than in accordance with such procedure as may be prescribed by him in this behalf.

 

3. Where a judgement-debtor is arrested in execution of a decree for the payment of money and brought before the Recovery Officer, he shall inform him that he may apply to be declared an insolvent and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complied with the provisions of the law of insolvency for the time being in force.

 

4. Where a judgement-debtor expresses his. intention to apply to be declared an insolvent and furnishes security to the satisfaction of the Recovery Officer that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Recovery Officer, may release him from arrest, and if he fails so to apply and to appear, the Recovery officer may either direct the security to be realised or commit him to the civil person in execution of the decree.

 

135. Prohibition of arrest or detent/on of women In execution of decree for money.

Notwithstanding anything in this part, the Recovery Officer shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

 

136. Detention and release

1. The person detained in the civil prison in execution of a decree shall be so detained:-

(a) Where the decree is for the payment of a sum of money exceeding fifty rupees, for a period of six months, and

(b) in any other case, for a period of six weeks, provided that he shall be released from such detention before the expiration of the said period of six months .or six weeks, as the case may be.

(i) On the amount mentioned in the warrant for his detention being paid to the Recovery Officer.

(ii) On the decree against him being otherwise fully satisfied, or

(iii) On the request of the person, on whose application he has been so detained and if the-Recovery Officer is fully satisfied that the decree was satisfied.

(jv) On the omission of the person, on whose application he has been so detained, to pay subsistence allowance.

 

Provided also that he shall not be released from such detention without the order of the Recovery Officer.

 

2. A judgement debtor released from detention under this rule shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in the civil prison.

 

 

 

PART IV

GENERAL

 

137. Procedure for recovery of sums due to Government.

The provisions of rules 116 to 136 shall apply in regard to the recovery of any sum due to the Government from a society or from an officer, former officer, member or past or deceased member of a society in pursuance of a demand issued by the Registrar or by any authority competent to issue such demand including any costs awarded to the Government in proceedings under the Act as if the Government were a decree holder and the society or officer, former officer, member or past or deceased member of a society, as the case may be, was a defaulter, subject to the following medications, namely:-

(1) The Registrar may, of his own motion, take any steps which he may deem suitable in the matter of such recovery in accordance with the provisions of those rules and without any applications having been made to him in that behalf under these rules.

(2) It shall not be necessary to deposit any sum by way of costs as required by these rules.

(3) It shall not be necessary for the Recovery Officer to give the decree holder previous notice.

(4) It shall not be necessary to send a copy of the attachment notice to the decree-holder.

(5) It shall not be necessary to give notice of the proclamation of sale to the decree-holder.

 

138. Powers of the Recovery Officer not to be behind the decree and certificate.

The Recovery Officer shall not go behind the decree or the certificate issued by the Registrar persuant of provision to clause (a) of section 71. He shall not alter it nor shall entertain any objection as to validity or legality or correctness of the decree or the certificate under execution.

Provided that a decree passed against a person who was dead at the time of passing the decree without bringing his legal representative on the record shall not be executed.

Provided further that where terms of a decree are ambiguous it will be competent for the Recovery Officer to ascertain its precise terms first before issuing any process for execution.

 

139. Questions relating to execution, discharge or satisfaction.

1         All questions arising between the parties to the arbitration proceedings in which award was made or amount certified to be recovered as arrears of land revenue, and relating to execution, discharge, or satisfaction of the decision, award or order under execution shall be determined by the Recovery Officer, executing the decree, award, decision or order.

 

2. Where a question arises as to whether a person is, or is not the legal representative of a party, such question shall be decided by the Recovery Officer for purpose of execution, discharge or satisfaction of the decree, award, decisions or order under execution.

 

140. Limit of time and execution

1. A decree-holder will have the right to executive his decree in order to realise the fruits of his litigation and for that purpose he may make any number of applications in succession. The Recovery Officer shall not refuse execution unless his application is barred by article 136 of the Indian Limitation Act, 1963 (Act no 36 to 1963).

2. Notwithstanding any thing contained in the bye-laws or these rules; if in the opinion of the RgJtrar any co-operative society is reluctant to take or does not take execution against judgement debtor due to false sympathy or other wise the Registrar may, by an order in writing authorise any officer or the Financing Bank to call and to send the award or orders obtained by the cooperative society for execution. The Financing Bank there upon shall take action for the execution of such decree as if it is a decree holder itself.

 

141. Execution by society under liquidation

1. The liquidator shall take necessary action to get the decree in favour of a cooperative society in respect of which he has been appointed the liquidator, executed, in accordance with the provisions of the Chapter.

2. Any order issued by the liquidator against any contributory shall be executed in the manner prescribed in rules III to 115 provided that he shall not be required to deposit the execution charges alongwith the application for execution.

 

142. Assistance and information

A decree-holder applying to execute a decree shall give the Registrar and Recovery Officer such information and aid As may reasonably be required.