Rule 37 - Procedure in execution of decrees, orders and decisions - Multi-State Cooperative Societies Rules, 2002

Procedure in execution of decrees, orders and decisions 37. (1) Any decree-holder requiring the provisions of clause (c) of section 94 to be applied, shall apply to the recovery officer in whose jurisdiction the cause of action arose and shall deposit the necessary costs as fixed by the Central Registrar. If the judgment debtor resides, or the property to be proceeded against is situated, outside the jurisdiction of such recovery officer, the recovery officer shall transfer the application to the recovery officer in whose jurisdiction the judgment debtor resides or the property is situated. (2) Every such application shall be made in the form specified by the Central Registrar and shall be signed by the decree-holder. The decree-holder may indicate whether he wishes to proceed against the immovable property mortgaged to the decree-holder or other immovable property or to secure the attachment of movable property. (3) On receipt of such application, the recovery officer shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in the office of Central Registrar and prepare a demand notice in writing in duplicate in the form specified by the Central Registrar, setting forth the name of the judgment debtor and the amount due and forward it to the Sale Officer. (4) Unless the decree-holder has expressed a desire that proceedings should be taken in a particular order as laid down in sub-rule (2), execution shall ordinarily be taken in the following manner, namely:- (i) movable property of the defaulter shall be first proceeded against, but this shall not 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 the decree-holder, or other immovable property belonging to the judgment debtor may be proceeded against. (5) In the attachment and sale of movable property, the following rules shall be observed, namely:- (a) the Sale Officer, shall after giving previous notice to the decree-holder, proceed to the village or place where the judgment debtor resides or the property to be distrained is situated and serve a demand notice upon the judgment debtor if he is present. If the amount due together with expenses be not at once paid, the Sale Officer shall make the distress and shall immediately deliver to the judgment debtor a list or inventory of the property distrained and an intimation of place and day and hour at which the distrained property will be brought to sale if the amount due are not previously discharged. If the judgment debtor is absent, the Sale Officer shall serve the demand notice on some adult male member of his family, or on his authorised agent, or when such service cannot be effected, shall affix a copy of the demand notice on some conspicuous part of his residence. He shall then proceed to make the distress and shall fix the list of property attached on the usual place of residence of the judgment debtor, endorsing thereon the place where the property may be lodged or kept and an intimation of the place, day and hour of sale. 1 [ (aa) The demand notice issued by the recovery officer under sub-rule (3) shall contain the name of the judgement debtor, the amount due, including the expenses, if any, and the batta to be paid to the person who shall have the demand notice, the time allowed for payment and in case of non-payment the particulars of the properties to be attached and sold. After receiving the demand notice upon the judgement debtor. If the judgement debtor fails to pay the amount specified in the demand notice within the time allowed. ] (b) After the distress is made, the Sale Officer may arrange for the custody of the property attached with the decree-holder or otherwise. If the Sale 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 live-stock, the decree-holder shall be responsible for providing the necessary food therefor. The Sale Officer may, at the instance of the judgment debtor or of any person claiming an interest in such property, leave it in the village or place where was attached, in the charge of such judgment debtor or person, if he gives a bond in the form specified by the Central Registrar with one or more sufficient sureties for the production of the property as and when called for. (c) The distress shall be made after sunrise and before sunset and not at any other time. (d) The distress levied shall not be excessive, that is to say, the property distrained 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. (e) If crops or ungathered products of the land belonging to a judgment debtor are attached, the Sale Officer may cause them to be sold when fit for reaping or gathering, or at his option may cause them to be reaped or gathered in due season and stored in proper place until sold. In the latter case, the expense 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 vent of its being sold. (f) The Sale Officer shall not work the bullocks or cattle, or make use of the goods or effect distrained, and he shall provide the necessary food for the cattle or livestock, the expense attending which 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. (g) It shall be lawful for the Sale Officer to force open any stable, cow house, granary, godown, out-house or other building and he may also enter any dwelling house, the outer door of which may be open and may break open the door of any room in such dwelling house for the purpose of attaching property belonging to a defaulter and lodged therein, provided always that it shall not be lawful for the officer to break open or enter apartment in such dwelling house appropriate for the zenana or residence of women except as hereinafter provided. (h) Where the Sale 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 appropriated to women which by custom or usage are considered private, the Sale Officer shall represent the 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 Sale Officer may force open the other door of such dwelling house, like manner as he may break open the door of any room within the house except the zenana. The Sale Officer may also, in the presence of a police officer, after due notice given for the removal of women within a zenana and, after furnishing means for their removal in a suitable manner if they be women of rank who, according to the custom of usage cannot appear in public, enter the zenana apartments for the purpose of distraining the judgment debtor's property, if any, deposited therein, but such property, if found, shall be immediately removed from such apartments after which they shall be left free to the former occupants. (i) The Sale Officer shall on the day previous to and on the day of sale cause proclamation of the time and place of the intended sale to be made by beat of drum in the village or place in which the judgment debtor resides on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale and in such other place or places as the officer may consider as the officer may consider necessary to give due publicity to the sale. 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 prescribed in clause (a) of this sub-rule: Provided that where the property seized is subject to speedy or natural decay, or where the expense of keeping it in custody is likely to exceed its value, the Sale Officer may sell it at any time before the expiry of the said period of fifteen days, unless the amount due is sooner paid. (j) At the appointed time the property shall be put up in one or more lots, as the Sale Officer may consider advisable and shall be disposed of to the highest bidder: Provided further that the Sale Officer may, in his discretion, adjourn the sale to a specified date and time recording his reasons for such adjournment. Where a sale is so adjourned for a longer period than seven days, a fresh proclamation under clause (i) shall be made unless the judgment debtor consents to waive it. (k) 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. Where the purchaser may fail in payment of purchase money, the property shall be resold. (l) Where any property which has been attached under these rules has been forcibly or clandestinely removed by any person, the Sale Officer may apply to a civil court having jurisdiction for restoration of such property. Where the court is satisfied about the truth of the facts, as alleged in the application, it may order forthwith such property to be restored to the Sale Officer. (m) Where prior to the day fixed for 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, batta and other costs incurred in attaching the property, the Sale Officer shall cancel the order of attachment and release the property forthwith. (n) The movable property mentioned as exempt from attachment in the proviso to section 60 of the Code of Civil Procedure, 1908 (5 of 1908), shall not be liable to attachment or sale under these rules. (6) Where the movable property to be attached is the salary or allowance or wages of a public servant or a servant of a local authority or a firm or a company, the recovery officer may, on receiving a report from the Sale Officer, order that the amount shall, subject to the provisions of section 60 of the Code of Civil Procedure, 1908 (5 of 1908) be with-held from such salary or allowances or wages either in one payment or by monthly installment as the recovery officer may direct and upon receipt of the order, the officer or other person whose duty it is to disburse such salary or allowance or wages shall withhold and remit to the Sale Officer, the amount due under the order or the monthly installment, as the case may be. (7) (i) Where the property to be attached consists of the share or interest of the defaulter in movable property belonging to him and another as coowners, the attachment shall be made by a notice to the defaulter, prohibiting him from transferring the share or interest or charging it in any way. (ii) Where the property to be attached is negotiable instrument not deposited in a court, nor in the custody of a public officer, the attachment shall be made by actual seizure and the instrument shall be brought to the office of the recovery officer ordering the attachment and be held subject to his further orders. (iii) 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 recovery officer issuing the notice: Provided that where such property is in the custody of a court or recovery officer of another district, any question of title or priority arising between the decree-holder and any other person not being the judgment debtor claiming to be interested in such property by virtue of any assignment, attachment or otherwise shall be determined by such court or recovery officer. (8) (i) 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 if the decree sought to be attached was passed by the Central Registrar or any other person authorised by him 2 [ not below the rank of Assistant Registrar of Co-operative Societies in a state or an officer of equivalent rank ] . (ii) Where the Central Registrar makes an order under clause (i) he shall on the application of the decree-holder who has attached the decree, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. (iii) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in clause (i), 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 for the holder thereof. (iv) Where the property to be attached in execution of a decree is a decree other than a decree of the nature referred to in clause (i), the attachment shall be made by the issue of a notice by the recovery officer to the holder of such decree prohibiting him from transferring or charging the same in any way. (v) The holder of a decree attached under this sub-rule shall give the recovery officer executing the decree such information and aid as may reasonably be required. (vi) On the application of the holder of a decree sought to be executed by the attachment of another decree, the recovery officer making an order of attachment under this sub-rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof either through the said recovery officer or otherwise, shall be recognised so long as the attachment remains in force. (9) Where the movable property to be attached is, (a) a debt due to the judgment debtor 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 judgment debtor, 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- signed by the recovery officer prohibiting (i) in the case of debt, the creditor from recovering the debt and the debtor from making payment thereof; (ii) in the case of a 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; and (iii) in the case of any other movable property, the person in possession of it from giving it over to the judgment debtor. A copy of such order shall be sent in the case of the debt to 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 to the person in possession of such property. As soon as the debt referred to in clause (a) or the deposit referred to in clause (b) 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 its sale through a broker. Where the share is withdrawable, its value shall be paid to the recovery officer or to the party referred to in clause (c). In the case of other moveable property referred to in sub-clause (iii)of clause (c) the person concerned shall place it in the hands of the recovery officer when it becomes deliverable to the defaulter. (10) Immovable property shall not be sold in execution of a decree unless such property has been previously attached: Provided that where the decree has been obtained on the basis of a mortgage of such property it shall not be necessary to attach it. (11) In the attachment and sale, or sale without attachment of immovable property, the following rules shall be observed, namely (a) The application presented under sub-rule (2) 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 numbers in a 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. (b) The demand notice issued by the recovery officer under sub-rule (3) shall contain the name of the judgment debtor, the amount due, including the expenses, if any, and the batta to be paid to the person who shall serve the demand notice 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 Sale Officer shall serve or cause to be served a copy of the demand notice upon the judgement debtor 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 affix a copy thereof on some conspicuous part of such immovable property to be attached and sold or sold without attachment, as the case may be: Provided that where the recovery officer is satisfied 3 [ for the reasons to be recorded in writing ] that a judgment debtor with intent to defeat or delay the execution proceedings against him is about to dispose of whole or any part of his property, the demand notice issued by the recovery officer under sub-rule (3) shall not allow any time to the judgment debtor for payment of the amount due by him and the property of the judgment debtor shall be attached forthwith. (c) If the judgement debtor fails to pay the amount specified in the demand notice within the time allowed, the Sale Officer shall proceed to attach and sell or sell without attachment, as the case may be, the immovable property mentioned in the application for execution in the following manner. (d) Where attachment is required before sale, the Sale Officer shall, if possible cause a notice of attachment to be served on the judgment debtor personally. Where personal service is not possible, the notice shall be affixed in some conspicuous part of the judgment debtor's last known residence, if any. The fact of attachment shall also be proclaimed by 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 recovery officer 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 attachment notice shall be sent to the decree-holder. Where the Sale Officer so directs the attachment shall also be notified by public proclamation in the Official Gazette. (e) Proclamation of sale shall be published by affixing a notice in the office of the recovery officer and the taluk office at least thirty days before the date fixed for the sale and also by beat of drum in the village (on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale). Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected. Notice shall also be given to the decree-holder and the judgment debtor. The proclamation shall state the time and place of sale and specify as fairly and accurately as possible, the following namely (i) the property to be sold; (ii) any encumbrances to which the property is liable; (iii) the amount for the recovery of which sale is ordered; and (iv) every other matter which the Sale Officer considers material for a purchaser to know in order to judge the nature and value of the property. (f) 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 rupees one hundred, furnish to the Sale Officer within such time as may be fixed by him or by the recovery officer, an encumbrance certificate from the Registration Department for the period of not less than twelve years prior to the date of attachment of the property sought to be sold, or in cases falling under the proviso to sub-rule (10), prior to the date of the application for execution. The time for production of the encumbrance certificate may be extended at the discretion of the Sale Officer or the recovery officer, as the case may be. The sale shall be by public auction to the highest bidder: Provided that it shall be open to the Sale Officer to decline to accept the highest bid where the price offered appears to be unduly low or for other adequate reasons: Provided further that the recovery officer or the Sale Officer may in his discretion adjourn the sale to a specified day and hour recording his reason for such adjournment. Where a sale is so adjourned for a longer period than seven days, a fresh proclamation under clause (e) shall be made, unless the judgment debtor consents to waive it. 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 recovery officer. The time and 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: Provided also that in cases where an encumbrance certificate is not obtainable owing to the destruction of the connected records, an affidavit from the village patwari or corresponding officer in regard to the encumbrances known to him supported by a certificate from the Registration Department that the encumbrances certificate cannot be granted owing to the destruction of the connected records, shall be accepted in place of an encumbrance certificate. (g) A sum of money equal to fifteen per cent of the price of the immovable property shall be deposited by the purchaser in the hands of the Sale Officer at the time of the purchase and in default of such deposit, the property shall forthwith be resold: Provided that where the decree-holder is the purchaser and is entitled to set off the purchase money under clause (k), the Sale Officer shall dispense with the requirement of this clause. (h) The remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within fifteen days from the date of sale: Provided that the time for payment of the cost of the stamps may, for good and sufficient reasons, be extended at the discretion of the recovery officer up to thirty days from the date of sale: Provided further that in calculating the amounts to be paid under this clause, the purchaser shall have the advantage of any set off to which he may be entitled under clause (k). (i) In default of payment within the period mentioned in clause (h) the deposit may, if the recovery officer thinks fit, after defraying the expenses of sale, be forfeited to the Central Government and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsequently be sold. (j) Every resale of immovable property in default of payment of the amount mentioned in clause (h) within the period allowed for such payment shall be made after the issue of a fresh proclamation in the manner and for the period herein before prescribed for the sale. (k) 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 Sale Officer shall enter satisfaction of the decree in whole or in part accordingly. (12) Where prior to the date fixed for a sale, the defaulter or any person acting on his behalf or any person claiming an interest in the property sought to be sold tenders payment of the full amount due together with interest, batta and other expenses incurred in bringing the property to sale including the expenses of attachment, if any, the Sale Officer shall forthwith release the property after cancel, where the property has been attached, the order of attachment. (13) (a) Where immovable property has been sold by the Sale Officer, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing with the recovery officer (i) for payment to the purchaser a sum equal to five per cent of the purchase money, and (ii) 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 costs due in respect of such amount, less amount which may since the date of such proclamation have been received by the decree-holder. (b) If such deposit and application are made within thirty days from the date of sale, the recovery officer 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 five per cent deposited by the applicant: Provided that if more than one person have made deposit and application under this sub-rule, the application of the first depositor to the officer authorised to set aside the sale, shall be accepted. (c) If a person applies under sub-rule (14) to set aside the sale of immovable property, he shall not be entitled to make an application under this sub-rule. (14) (i) At any time within thirty days from the date of sale of immovable property, the decree-holder or any person entitled to share in a rate able distribution of the assets or whose interests are effected by the sale, may apply to the recovery officer to set aside the sale on the ground of a material irregularity or mistake or fraud in publishing or conducting it: Provided that no sale shall be set aside on the ground of irregularity or fraud unless the recovery officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud. (ii) If the application is allowed, the recovery officer, shall set aside the sale and may direct a fresh one. (iii) On the expiration of thirty days from the date of sale if no application to have the sale set aside is made or if such application has been made and rejected, the recovery officer shall make an order confirming the sale: Provided that if he shall have reason to believe that the sale ought to be set aside notwithstanding that no such application has been made or 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. (iv) 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. (v) After the confirmation of any such sale, the recovery officer shall grant a certificate of sale bearing his seal and signature to the purchaser, and 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 genuineness. (vi) An order made under this sub-rule shall be final, and shall not be liable to be questioned in any suit or other legal proceedings. (15) Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person (not being the judgement debtor) 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 sub-rule (14) shall cause the proper process to be issued for the purpose of putting such purchaser in possession, in the same manner as if the immovable property purchased has been decreed to the purchaser by a decision of the court. (16) It shall be lawful for the Sale Officer to sell the whole or any portion of the immovable property of a judgment debtor in discharge of money due: Provided that so far as may be practicable, no larger section or portion of immovable property shall be sold than may be sufficient to discharge the amount due with interest and expenses of attachment, if any, and sale. (17) Persons employed in serving notice or in other process under these rules shall be entitled to batta at such rates as may from time to time be fixed by the recovery officer. (18) Where the costs and charges incurred in connection with attachment and sale of movable property or the attachment and sale or sale without attachment of immovable property under this rule, exceeds the amount of the cost deposited from the sale proceeds of the property sold or the money paid by judgment debtor, as the case may be, and the balance shall be made available to the decree-holder. (19) Every person making a payment towards any money due for the recovery of which application has been made under this rule shall be entitled to a receipt for the amount signed by the Sale Officer or other officer empowered by the recovery officer in that behalf; such receipt shall state the name of the person making the payment and the subject matter in respect of which the payment is made. 20) (a) Where any claim is preferred to, or any objection is made to the property attached under this rule on the ground that such property is not liable to such attachment, the Sale Officer shall investigate the claim or objection and dispose it of on the merits: Provided that no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous, (b) Where the property to which the claim or objection relate has been advertised for sale, the Sale Officer may postpone the sale pending the investigation of the claim or objection. (c) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which the claim to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. (21) (i) Any deficiency of price which may arise on a resale held under clause (j) of sub-rule (11) by reason of the purchaser's default and all expenses attending such resale shall be certified by the Sale Officer to the recovery officer and shall, at the instance of either the decree-holder or the judgment debtor be recoverable from the defaulting purchaser under the provisions of this rule. The cost, if any, incidental to such recovery shall be borne by the defaulting purchaser. (ii) Where the property may on the second sale, sell for a higher price than at the first sale, the defaulting purchaser at the first sale, shall have no claim to the difference or increase. (22) Where any property has been attached in execution of a decree, but by reason of the decree-holder's 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. (23) Where assets are held by the Sale Officer and before the receipt of such assets, demand notices in pursuance of application for execution of decree-against the same defaulter have been received from more than one decree-holder and decree-holders have not obtained satisfaction, the assets after deducting the costs or realisation shall be rateably distributed by the Sale Officer among all such decree-holders in the manner provided in section 73 of the Code of Civil Procedure 1908 (5 of 1908). (24) Where a defaulter dies before the decree has been fully satisfied, an application under sub-rule (1) may be made against the legal representative of the deceased and thereupon all the provisions of this rule shall, save as otherwise provided in this sub-rule, apply as if such legal representative were the judgment debtor. Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of, and for the purpose of ascertaining such liability, the recovery officer executing the decree may, of his own motion or on the application of the decree-holder compel such legal representative to produce such accounts as he thinks fit. ********** Notes 1. Inserted vide Notification No. G.S.R. 717 (E) dated 12-11-2007 2. Inserted vide Notification No. G.S.R. 717 (E) dated 12-11-2007 3. Inserted vide Notification No. G.S.R. 717 (E) dated 12-11-2007