BIHAR & ORISSA
PUBLIC DEMANDS RECOVERY RULES
Signature and Verification of Requisitions
For Certificates
Rule - 1. Signature and Verification of requisition for certificates.--
(1)
Every requisition made under Section 5 shall
be signed and verified at the foot by the person making it, or by some other
person on his behalf who is proved to the satisfaction of the Certificate
Officer to be acquainted with the facts of the case.
(2)
The verification shall state the person
signing the requisition has been satisfied by enquiry that the amount stated in
the requisition is actually due.
(3)
The verification shall be signed by the
person making it and shall state the date on which it is signed.
Service of Notices
Rule - 2. Mode of Service.--
Service of a notice issued under Section 7, or under any
other provision of this Act, shall be made by delivering or tendering a copy
thereof signed by the Certificate Officer or such ministerial officer as he
authorizes in this behalf, and sealed with the seal of the Certificate Officer.
Rule - 3. Service on certificate-debtor or his agent.--
Wherever it is practicable, service shall be made on the
certificate-debtor in person, unless he has an agent empowered to accept
service in which case service on such agent shall be sufficient.
Rule - 4. Service on adult male member of certificate-debtor's family.--
Where the certificate-debtor cannot be found, and has no
agent empowered to accept service of the notice on his behalf service may be
made on any adult male member of the family of the certificate-debtor who is
resident with him.
Explanation.-A servant is not a member of the
family within the meaning of this Rule.
Rule - 5. Person served to sign acknowledgment.--
Where the serving officer delivers of tenders a copy of the
notice to the certificate-debtor personally or to an agent or other person on
his behalf, he shall require the signature of the person to whom the copy is so
delivered or tendered to an acknowledgment of service endorsed on the original
notice.
Rule - 6. Procedure where certificate-debtor refuses to accept service or cannot be found.--
Where the certificate-debtor or his agent, or such other
person aforesaid, refuses to sign the acknowledgment, or where the serving
officer, after using all due and reasonable diligence, cannot find the
certificate-debtor, and there is no agent empowered to accept service of the
notice on his behalf, nor any other person on whom service can be made, the
serving officer shall-
(a)
affix copy of the notice on the outer door or
some other conspicuous part of the house in which the certificate-debtor
ordinarily resides or carries on business or personally works for gain; or
(b)
if there be land affected by the notice,
affix a copy of the notice on some conspicuous place in the office of the
Certificate Officer and also on some conspicuous part of the land, and shall
then return the original to the Certificate Officer by whom it was issued, with
a report endorsed thereon or annexed thereto stating that he has so affixed the
copy; the circumstances under which he did so, and the name and address of the
person (if any) by whom the house or land was identified and in whose presence
the copy was affixed.
Rule - 7. Endorsement of time and manner of service.--
The serving officer shall, in all cases in which the
notice has been served under Rule, 5, endorse or annex, or cause to be endorsed
or annexed, on or to the original notice, a return stating the time when and
the manner in which the notice was served and the name and address of the person
(if any) identifying the person served and witnessing the delivery or tender of
the notice.
Rule - 8. Examination of serving officer.--
Where a notice is returned under Rule 6, the Certificate
Officer shall, if the return under that Rule has not been verified by the
affidavit of the serving officer, and may, if it has been so verified, examine
the serving officer on oath, or cause him to be so examined by another
Certificate Officer, or subject to any general order of the Collector by an
Assistant Collector, Deputy Collector or Sub-Deputy Collector, touching his
proceedings, and make such further inquiry in the matter as he thinks fit; and
shall either declare that the notice has been duly served or order such service
as he thinks fit.
Rule - 9. Service by post.--
Notwithstanding anything hereinbefore contained, the
notice may, if the Certificate Officer so directs, be served by post.
Petitions under Section 9, Denying Liability
Rule - 10. Signature and verification of petition denying liability.--
(1)
Every petition filed under Section 9, denying
liability shall be signed and verified at the foot by the certificate-debtor or
by some other person on his behalf-who is proved to the satisfaction of the
Certificate Officer to be acquainted with the facts of the case.
(2)
The verification shall be signed by the
person making it and shall state the date on which it is signed.
Rule - 11. Transfer of such petitions.--
(1)
The Certificate Officer may, subject to any
general or special order of the Collector transfer to any Assistant Collector
or Deputy Collector subordinate to the Collector any petition filed under
Section 9 and such Assistant Collector or Deputy Collector shall hear and
determine such petition accordingly:
Provided that the Collector may re-transfer
any petition so transferred and order that it be heard and determined by the
Certificate Officer.
(2)
The provisions of Section 10 shall be
applicable to any Assistant Collector or Deputy Collector to whom any such
petition has been transferred under sub-rule (1).
Execution of Certificate
Rule - 12. Execution in another district.--
Where a copy of a certificate is sent for execution to
the Collector of another district under Section 13, sub-section (1) the
certificate may be executed by him or may be transferred by him to any
Certificate Officer in his district.
Attachment
Rule - 13. Attachment of movable property (other than agricultural produce) in possession of certificate debtor.--
Where the property to be attached is movable property
(other than agricultural produce) in the possession of the certificate debtor;
the attachment shall be made by actual seizure, and the attaching officer shall
keep the property in his own custody or in the custody of one of his
subordinates, and shall be responsible for the due custody thereof:
Provided that, when the property seized is
subject to speedy and natural decay or when the expense of keeping it in
custody is likely to exceed its value the attaching officer may sell it at
once.
Rule - 14. Attachment of agricultural produce.--
Where the property to be attached is agricultural
produce, the attachment shall be made by affixing a copy of the warrant of
attachment-
(a)
where such produce is a growing crop-on the
land on which such crop has grown, or
(b)
where such produce has been cut or
gathered-on the threshing floor or place of treading out grain or the like, or
fodder-stack, on or in which it is deposited
and another copy on the outer door or on some
other conspicuous part of the house in which the certificate-debtor ordinarily
resides, or, with the leave of the Certificate Officer, on the outer door or
some other conspicuous part of the house in which he carries on business or
personally works for gain, or in which he is known to have last resided or
carried on business or personally worked for gain;
and the produce shall thereupon be deemed to
have passed into the possession of the Certificate Officer.
Rule - 15. Provisions as to agricultural produce under attachment.--
(1)
Where agricultural produce is attached, the
Certificate Officer shall make such arrangements for the custody thereof as he
may deem sufficient and, when the produce is a growing crop, shall have regard
to the time at which it is likely to be fit to be cut or gathered.
(2)
Subject to such conditions as may be imposed
by the Certificate Officer in this behalf, either in the order of attachment or
in any subsequent order, the certificate-debtor may tend, cut, gather and store
the produce and do any other act necessary for maturing or preserving it, and,
if the certificate-debtor fails to do all or any such acts the
certificate-holder may, with the permission of the Certificate Officer and
subject to the like conditions, do all or any of them either by himself or by
any person appointed by him in this behalf, and the costs incurred by the
certificate-holder shall be recoverable from the certificate-debtor as if they
were included in the certificate.
(3)
Agricultural produce attached as a growing
crop shall not be deemed to have ceased to be under attachment or to
require-attachment merely because it has been served from the soil.
(4)
Where an order for the attachment of a
growing crop has been made at a considerable time before the crop is likely to
be fit to be cut or gathered, the Certificate Officer may suspend the execution
of the order for such time as he thinks fit, and may, in his discretion, make a
further order prohibiting the removal of the crop pending the execution of the
order of attachment.
(5)
A growing crop which from its nature does not
admit of being stored shall not be attached under this Rule at any time less
than twenty days before the time at which it is likely to be fit to cut or
gathered.
Rule - 16. Attachment of debt, share and other movable property not in possession of certificate-debtor.--
(1)
In the case of-
(a)
a debt not secured by a negotiable
instrument,
(b)
a share in the capital of a Corporation, or
(c)
other movable property not in the possession
of the certificate-debtor, except property deposited in, or in the custody of
any Court, the attachment shall be made by a written order prohibiting-
(i)
in the case of the debt-the creditor from
recovering the debt and the debtor from making payment thereof until the
further order of the Certificate Officer;
(ii)
in the case of the share-the person in whose
name the share may be standing from transferring the same or receiving any
dividend thereon;
(iii)
in the case of other movable property (except
as aforesaid)-the person in possession of the same giving it over to the
certificate-debtor.
(2)
A copy of such order shall be affixed on some
conspicuous part of the office of the Certificate Officer and another copy
shall be sent, in the case of the debt to the debtor, in the case of the share
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 the same.
(3)
A debtor prohibited under clause (i) of
sub-rule (1) may pay the amount of his debt to the Certificate Officer, and
such payment shall discharge him as effectually as payment to the party
entitled to receive the same.
Rule - 17. Attachment of share in movables.--
Where the property to be attached consist of the share or
interest of the certificate-debtor in movable property belonging to him and
another as co-owners, the attachment shall be made by a notice to the
certificate-debtor prohibiting him from transferring the share or interest or
changing it in any way.
Rule - 18. Attachment of salary or allowances of public officer or servant of Railway Company or Local Authority.--
(1)
Where the property to be attached is the
salary or allowances of a public officer or of a servant of a Railway Company
or Local Authority, the Certificate Officer, whether the certificate-debtor or
the disbursing officer is or is not within the local limits of the Certificate
Officer's jurisdiction, may order that the amount shall be withheld from such
salary or allowances, either in one payment or by monthly installments as the
Certificate Officer may direct; and, upon notice of the order to such officer
as the State Government may, by notification in the Official Gazette, appoint,
in this behalf, the officer or other person whose duty it is to disburse such
salary or allowances shall withhold and remit to the Certificate Officer the
amount due under the order, or as the case may be.
Note- Under Government Notification No.
7035-R., dated the 12th October, 1915 the officers mentioned in column 2 of the
following table have been appointed as officers to whom notices or orders
attaching the salary or allowances of the public officers and servants,
respectively mentioned opposite to them in column 1 of the table, should be
sent-
|
|
Certificate debtor |
Officer to whom notice should be sent |
|
(1) |
Public Officers holding Gazetted appointments under the
Government of Bihar. |
Accountant-General, Bihar |
|
(2) |
Public Officers holding non-Gazetted appointments under
the Government. |
Head of the Office in which the certificate-debtor is
employed. |
|
(3) |
Servants of local Authorities within the State of
Bihar. |
Chairman of the Local Authority under which the
certificate debtor is employed. |
|
(4) |
Employees of State Railways worked by or being
constructed by the State. |
Chief Examiner of Accounts of the Railway concerned. |
|
(5) |
Employees of State Lines worked by Companies and
Companies lines. |
Chief Auditor of the Railway concerned. |
|
(6) |
Employees of Arrah-Sasaram Light Railway Company
Limited, the Bakhtiyarpur-Bihar Light Railway Company Limited, Dehri-Rohtas
Light Railway Company Limited, the Darjeeling Himalayan Railway Extension
Company Limited. |
The Managing Agents of the Railway concerned. |
(2)
Where the attachable proportion of such
salary or allowances is already being withheld and remitted to a Certificate
Officer or to a Civil Court in pursuance of a previous and unsatisfied order of
attachment, the officer appointed by the State Government in this behalf shall
forthwith return the subsequent order to the Certificate Officer issuing it,
with a full statement of all the particulars of the existing attachment.
(3)
Every order made under this Rule, unless it
is returned in accordance with the provisions of sub-rule (2), shall without
further notice or other process, bind the Central or the State Government or
the Railway Company or Local Authority as the case may be, and the Central or
the State Government or the Railway Company or Local Authority, as the case may
be, shall be liable for any sum paid in contravention of this Rule.
Rule - 19. Attachment of negotiable instruments.--
Where the property is a 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 sought before the
Certificate Officer and help subject to his orders.
Rule - 20. Attachment of property in custody of Court or public officer.--
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
Certificate Officer by whom the notice is issued:
Provided that, where such property is in the
custody of a Court any question of title or priority arising between the
certificate-holder and any other person, not being the certificate-debtor,
claiming to be interested in such property by virtue of any assignment,
attachment or otherwise, shall be determined by such Court.
Rule - 21. 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 by the issue to the Civil
Court of a notice requesting the Civil Court to stay the execution of the
decree unless and until-
(i)
the Certificate Officer cancels the notice,
or
(ii)
the Certificate-holder or the
certificate-debtor applies to the Court receiving such notice to execute the
decree.
(2)
Where a Civil Court receives an application
under clause (iii) of sub-section (1) it shall, on the application of the
certificate-holder or the certificate debtor, and subject to the provisions of
the Code of Civil Procedure, 1908 (V of 1908) proceed to execute the attached
decree and apply the net proceeds in satisfaction of the certificate.
(3)
The certificate-holder 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.
Rule - 22. Attachment of immovable property.--
Where the property is immovable, no attachment need be
made before sale.
Rule - 23. Removal of attachment on satisfaction or cancellation of certificate.--
Where-
(a)
the amount, due, with costs and all charges
and expenses resulting from the attachment of any property or incurred in order
to a sale, are paid to the Certificate Officer, or
(b)
the certificate is cancelled, the attachment
shall be deemed to be withdrawn, and, in the case of immovable property, the
withdrawal shall, if the certificate-debtor so desires, be proclaimed at his
expense, and a copy of the proclamation shall be affixed in the manner
prescribed by Rule 26, sub-rule (1).
Sale Generally
Rule - 24. Power to order sale of attached property.--
Any Certificate Officer executing a certificate may order
that any property liable to sale or such portion thereof as may seem necessary
to satisfy the certificate, shall be sold.
Rule - 25. Proclamation of sale by public auction.--
(1)
Where any immovable property, or any movable
property exceeding 1[two hundred rupees] in value, is ordered to be sold by
public auction, the Certificate Officer shall cause a proclamation of the
intended sale to be made in the language of the Courts of the district.
(2)
Where the property to be sold is the holding
of an occupancy raiyat, the Certificate Officer, before issuing the
proclamation, shall hear the parties and estimate the value of the holding or
of that portion of the holding the proceeds of the sale of which the considers,
will be sufficient to satisfy the certificate:
Provided that in execution of a certificate
for arrears of rent in respect of the holding of any occupancy raiyat, if the
certificate-holder specifies which portion of such holding should be sold, the
Certificate Officer shall order that such portion or so much of such portion as
may seem to him necessary to satisfy the decree, shall be sold:
Provided further that if there is any
incumbrance on any portion of such holding, the Certificate Officer shall not
order such portion to be sold unless in the opinion of the Court, the decree
cannot be satisfied without the sale of such portion.
(3)
Such proclamation shall be drawn up after
notice to the certificate-debtor and shall state the time and place of sale,
and shall specify, as fairly and accurately as possible-
(a)
the property to be sold;
(b)
(where the property to be sold is an interest
in an estate or in part of an estate paying revenue to the Government) the
revenue assessed upon the estate or part of the estate;
(bb) where the property to be sold is the holding
of an occupancy raiyat or a portion thereof, its value as determined by the
Certificate Officer in the manner specified in sub-rule (2);
(c)
the amount for the recovery of which the sale
is ordered; and
(d)
every other thing which the Certificate
Officer considers it material for a purchaser to know in order to judge of the
nature and value of the property.
(4)
where a tenure or a raiyati holding at fixed
rates situated in an area in which Chapter XIV of the Bengal Tenancy Act, 1885
* * * * * * is in force, is to be sold in execution of certificate for arrears
of rent due in respect thereof, the said proclamation shall also state that the
tenure holding will first be put up to auction subject to registered and
notified incumbrances, and will be sold subject to those incumbrances of the sum bid is sufficient to liquidate the amount
specified in the certificate, and costs, and that otherwise it will, if the
certificate-holder so desires be sold on a subsequent day, of which due notice
will be given, with power to annul all incumbrances.
(5)
Where an occupancy holding, situated in an
area in which Chapter XIV of the Bengal Tenancy Act, 1815 * * * * * is in
force, is to be sold in execution of a certificate for arrears of rent due in
respect thereof, the said proclamation shall also state that the holding will
be sold with power to annul all incumbrances.
(6)
Where the certificate-holder is a co-sharer
landlord and the certificate is for his share of the rent only, the provisions
of sub-rules (4) and (5) shall not apply proclamation, the Certificate Officer
may summon any person whom he thinks necessary to summon, and may examine him
in respect to any such matters and require him to produce any document in his
possession or power relating thereto.
Rule - 26. Mode of making proclamation.--
(1)
Every proclamation for the sale of immovable
property shall be made at some place on or near such property by beat of drum
or other customary mode, and a copy of the proclamation shall be affixed on a
conspicuous part of the property and then upon a conspicuous part of the office
of the Certificate Officer. A copy of the proclamation shall also be sent by
registered post to the certificate-debtor or, if there be more than one
certificate-debtor, to such one or more of them as the Certificate Officer may
select in this behalf.
Note-When the several certificate-debtors are
reasonably, near neighbours it would ordinarily suffice to send by registered
post one copy of the proclamation, the recipient being selected on the basis of
such considerations as the degree of interest, where the interests vary, age,
if known and sex.
Where, however, one or more of the
certificate-debtors resides or reside at a distance from the recipient first
selected the Certificate Officer should consider carefully the desirability of
issuing supplementary copies.
(2)
Where the Certificate Officer so directs; such
proclamation, shall also be published in the Official Gazette or in a local
newspapers, or in both; and the costs of such publication shall be deemed to be
costs of the sale.
(3)
If a tenure of a raiyati holding at fixed
rates or an occupancy holding situated in an area in which Chapter XIV of the
Bengal Tenancy Act, 1885, is in * * * * * in force is to be sold in execution
of a certificate from arrears of rent due in respect thereof, the proclamation
shall be published in the Malkachari or rent office of the estate and at the
local thana.
(4)
Where property is divided into lots for the
purpose of being sold separately it shall not be necessary to make a separate
proclamation for each lot, unless proper notice of the sale cannot, in the
opinion of the Certificate Officer, otherwise be given.
Rule - 27. Time of sale.--
Save in the case of property of the kind described in the
proviso to Rule 13, no sale hereunder shall, without the consent in writing of
the certificate-debtor, take place until after the expiration of at least
thirty days in the case of immovable property, or of at least fifteen days in
the case of movable property exceeding [1]
[two hundred rupees] in value, calculated from the date on which a copy of a
sale proclamation has been affixed in a conspicuous part of the office of the
Certificate Officer:
Provided that if a tenure, a raiyati holding
at fixed rates or an occupancy holding situated in an area in which Chapter XIV
of the Bengal Tenancy Act, 1885 * * * * * * * is in force, is to be sold in
execution of a certificate for arrears of rent due in respect thereof, the sale
shall not, without the consent in writing of the certificate-debtor, take place
until after the expiration of at least thirty days calculated from-
(a)
the date on which a copy of the sale
proclamation has been affixed at conspicuous part of the office of the
Certificate Officer, or
(b)
the date on which the sale proclamation has
been published in the Malkachari or rent office of the estate and at the local
thana.
whichever is later.
Rule - 28. Adjournment or stoppage of sale.--
(1)
The Certificate Officer may in his discretion
adjourn any sale hereunder to a specified day and hour, and the officer
conducting any such sale may in his discretion adjourn the sale, recording his
reasons for such adjournment:
Provided that, where the sale is made in, or
within the precincts of, the office of the Certificate Officer, no such
adjournment shall be made without the leave of the Certificate Officer.
(2)
Where a sale is adjourned under sub-rule (1)
for a longer period than seven days, a fresh proclamation under Rule 26 shall
be made, unless the certificate-debtor consents to waive it.
Note-The board has recently had under
consideration the question whether in view of Rule 28(2) of Schedule II of the
Public Demands Recovery Act, IV of 1914, a fresh proclamation is necessary in a
case where there is a series of short postponement each less than seven days,
which taken together in the aggregate amount to more than seven days. It has
now been decided in consultation with the Superintendent and Remembrance of
Legal Affairs, Bihar, that in such a case a fresh proclamation should be issued
unless the certificate-debtors consent to waive the right in this respect. The
attention of all District Officers is invited to the decision.
(3)
Every sale shall be stopped if, before the
lot is knocked down, the debt and costs (including the costs of the sale) are
tendered to the officer conducting the sale, or proof is given to his
satisfaction that the amount of such debt and costs has been paid to the
Certificate Officer who ordered the sale.
Rule - 29. Defaulting purchaser answerable for loss on re-sale.--
Any deficiency of price which may happen on a re-sale by
reason of the purchase default, and all expenses attending such re-sale, shall
be certified to the Certificate Officer by the officer or other person holding
the sale, and shall, at the instance of either the certificate-holder or the
certificate-debtor, be recoverable from the defaulting purchaser under the
procedure provided by this Act.
Rule - 30. Restriction on bidding or purchase by officers.--
No officer or other person having any duty to perform in
connection with any sale shall, either directly or indirectly, bid for, acquire
or attempt to acquire any interest in the property sold.
Sale of Movable Property
Rule - 31. Sale of agricultural produce.--
(1)
Where the property to be sold is agricultural
produce, the sale shall be held-
(a)
if such produce is a growing crop-on or near
the land on which such crop has grown; or
(b)
if such produce has been cut or gathered at
or near the threshing floor or place for treading out grain or the like, or
fodder-stack, on or in which it is deposited:
Provided that the Certificate Officer may
direct the sale to be held at the nearest place of public resort if he is of
opinion that the produce is thereby likely to sell to greater advantage.
(2)
Where on the produce being put up for sale-
(a)
a fair price, in the estimation of the person
holding the sale is not offered for it, and
(b)
the owner of the produce or a person
authorised to act in this behalf applies to have the sale postponed till the
next day or if a market is held at the place of sale the next market day.
the sale shall be postponed accordingly and
shall be then completed, whatever price may be offered for the produce.
Rule - 32. Special provision relating to growing crop.--
(1)
Where the property to be sold is a growing
crop and the crop from its nature admits of being stored, but has not yet been
stored, the day of the sale shall be so fixed as to admit of the crop being
made ready for storing before the arrival of such day, and the sale shall not
be held until the crop has been cut or gathered and is ready for storing.
(2)
When the crop from its nature does not admit
of being stored it may be sold before it is cut and gathered; and the purchaser
shall be entitled to enter on the land, and to do all that is necessary for the
purpose of tending and cutting or gathering the crop.
Rule - 33. Sale by public auction.--
(1)
Where movable property is sold by public
auction, the price of each lot shall be paid at the time of sale or as soon
after as the officer or other person holding the sale directs, and in default
of payment the property shall forthwith be re-sold.
(2)
On payment of the purchase money, the officer
or other person holding the sale shall grant a receipt for the same, and the
sale shall become absolute.
(3)
Where the movable property to be sold is a
share in goods belonging to the certificate-debtor and a co-owner, and two or
more persons, of whom one is such co-owner, respectively bid the same sum for
such property or for any lot, the bidding shall be deemed to be the bidding of
the co-owner.
Rule - 34. Irregularity not to vitiate sale, but any person injured may sue.--
No irregularity in publishing or conducting the sale of
movable property shall vitiate, but any person sustaining substantial injury by
reason of such irregularity at the hand of any other person may institute a
suit in a Civil Court against him for compensation, or if such other person is
the purchaser for the recovery of the specific property and for compensation in
default of such recovery.
Rule - 35. Delivery of movable property, debts and shares.--
(1)
Where the property sold is movable property
of which actual seizure has been made, it shall be delivered to the purchaser.
(2)
Where the property sold is movable property
in the possession of some person other than the certificate-debtor, the
delivery thereof to the purchaser shall be made by giving notice to the person
in possession, prohibiting him from delivering possession of the property to
any person except the purchaser.
(3)
Where the property sold is a debt not secured
by a negotiable instrument or is a share in a Corporation, the delivery thereof
shall be made by a written order of the Certificate Officer prohibiting the
creditor from receiving the debt or any interest thereon, and the debtor from
making payment thereof to any person except the purchaser, or prohibiting the
person in whose name the share may be standing from making any transfer of the
share to any person except the purchaser or prohibiting the person in whose
name the share may be standing from making any transfer of the share to any
person except the purchaser or receiving payment of any dividend or interest
thereon, and the manager, secretary or other proper officer of the Corporation
from permitting any such transfer or making any such payment to any person
except the purchaser.
Rule - 36. Transfer of negotiable instruments and shares.--
(1)
Where the execution of a document, or the
endorsement of the party in whose name a negotiable instrument or a share in a
Corporation is standing, is required to transfer such negotiable instrument or
share, the Collector, or such officer as he may appoint in this behalf, may
execute such document or make such endorsement as may be necessary and such
execution or endorsement shall have the same effect as an execution or
endorsement by the party.
(2)
Such execution or endorsement may be in the
following form, namely-A, B, by C, D. Collector of the district of.......in a
proceeding under the Bihar and Orissa Public Demands Recovery Act, 1914,
against A B.
(3)
Until the transfer of such negotiable
instrument or share, the Certificate Officer may, by order, appoint some person
to receive any interest or dividend due thereon, and to sign a receipt for the
same and day receipt so signed shall be as valid and effectual for all purposes
as if the same had been signed by the party himself.
Rule - 37. Vesting order in case of other property.--
In the case of any movable property not hereinbefore
provided for, the Certificate Officer may make an order vesting such property
in the purchaser or as he may direct and such property shall vest accordingly.
Sale of Immovable Property
Rule - 38. Sale of tenure or holding at fixed rates, subject to registered and notified incumbrances.--
(1)
When a tenure or a holding at fixed rates,
situated in an area in which Chapter XIV of the Bengal Tenancy Act, 1885 * * *
* * * * * * is in force, has been advertised under Rule 25 for sale in
execution of a certificate for arrears of rent due in respect thereof, it shall
be put up to auction subject to registered and notified incumbrances; and, if
the bidding reaches a sum sufficient to liquidate the amount of the certificate
and the costs of the sale, the tenure or holding shall be sold subject to such
incumbrances.
(2)
The purchaser at such sale may, in manner
provided by Section 167 of the Bengal Tenancy Act, 1885, and not otherwise
annul any incumbrance upon the tenure or holding not being a registered and
notified incumbrance.
Rule - 39. Sale of tenure or holding at fixed rates, with power to avoid all incumbrances.--
(1)
If the bidding for a tenure or a holding at
fixed rates put up to auction under Rule 38 does not reach a sum sufficient to
liquidate the amount of the certificate and costs as aforesaid and if the
certificate holder thereupon desired that the tenure or holding be sold with
power to avoid all incumbrances, the person holding the sale shall adjourn the
sale and make a fresh proclamation under Rule 25 announcing that the tenure or
holding will be put up to auction and sold with power to avoid all
incumbrances, upon a future day specified therein not less than fifteen or more
than thirty days from the date of the postponement, and upon that day the
tenure or holding shall be put to auction and sold with power to avoid all
incumbrances.
(2)
The purchaser at a sale under this Rule may,
in manner provided by Section 167 of the Bengal Tenancy Act, 1885 * * * * * *
and not other side, annul any incumbrance on the tenure or holding.
Rule - 40. Sale of occupancy holding with power to avoid all incumbrances.--
(1)
When an occupancy holding situated in an area
in which Chapter XIV of the Bengal Tenancy Act, 1885 * * * * * * * is in force
has been advertised under Rule 25 for sale in execution of a certificate for
arrears of rent due in respect thereof, it shall be put up to auction and sold
with power to avoid all incumbrances.
(2)
The purchaser at a sale under this Rule, may
in manner provided by Section 167 of the Bengal Tenancy Act, 1885 * * * * * *
and not otherwise, annul any incumbrances on the holding.
Rule - 41. Rules 38 to 40 not to apply in certain cases to certificate-holders who are co-sharer landlords.--
Where the certificate-holder is a co-sharer landlord and
the certificate is for his share of the rent only, the provisions of Rules 38,
39 and 40 shall not apply.
Rule - 42. Postponement of sale to enable certificate-debtor to raise amount due under certificate.--
(1)
When an order for the sale of immovable
property has been made, if the certificate-debtor can satisfy the Certificate
Officer that there is reason to believe that the amount of the certificate may
be raised by the mortgage or lease or private sale of such property or some
part thereof, or of any other immovable property of the certificate-debtor, the
Certificate Officer may, on his application postpone the sale of the property
comprised in the order for sale, on such terms and for such period as he thinks
proper to enable him to raise the amount.
(2)
In such case the Certificate Officer shall
grant a certificate to the certificate-debtor, authorising him, within a period
to be mentioned therein and notwithstanding anything contained in Section 8 or
Section 20, to make the proposed mortgage, lease or sale:
Provided that all moneys payable under such
mortgage, leases or sale shall be paid, not to the certificate-debtor but to
the Certificate Officer:
Provided also that no mortgage, lease or sale
under this Rule shall be absolute until it has been confirmed by the
Certificate Officer.
Rule - 43. Prohibition of purchase of tenure or holding by certificate-debtor.--
(1)
when a tenure or holding situated in an area
in which Chapter XIV of the Bengal Tenancy Act, 1885 * * * * * * * is in force,
is put up for sale in execution of a certificate for arrears of rent due in
respect thereof the certificate-debtor shall not bid for or purchase the tenure
or holding.
(2)
If a certificate-debtor purchases, by himself
or through another person a tenure or holding so sold, the Certificate Officer
may, if he thinks fit, on the application of the certificate-holder or any
other person interested in the sale, by order, set aside the sale; and the
costs of the application and order, and any deficiency of price which may
happen on the re-sale, and all expenses attending it, shall be paid by the
certificate-debtor.
Rule - 44. Deposit by purchaser and re-sale in default.--
On every sale of immovable property, the person declared
to be the purchaser shall pay immediately after such declaration, a deposit of
twenty-five percent on the amount of his purchase-money, to the officer or
other person conducting the sale; and in default of such deposit, the property
shall forth with be re-sold.
Rule - 45. Time for payment of purchase-money in full.--
The full amount of purchase-money payable shall be paid
by the purchaser to the Certificate Officer on or before the fifteenth day from
the sale of the property.
Rule - 46. Procedure in default of payment.--
In default of payment within period mentioned in Rule 45
the deposit may, if the Certificate Officer thinks fit after defraying the
expense of the sale be forfeited to the Government, and the property shall be
re-sold, and the defaulting purchaser shall forfeit all claim to the property
or to any part of the sum for which it may subsequently be sold.
Rule - 47. Notification on re-sale.--
Every re-sale of immovable property in default of payment
of the purchase-money within the period allowed for such payment, shall be made
after the issue of a fresh proclamation in the manner and for the period
hereinbefore prescribed for the sale.
Rule - 48. Bid of co-sharer to have preference.--
Where the property sold is a share of undivided immovable
property and two or more persons, of whom one is a co-sharer, respectively bid
the same for such property or for any lot, the bid shall be deemed to be the
bid of the co-sharer.
Rule - 49. Return of purchase-money in certain cases.--
Where a sale of immovable property is set aside, any
money paid or deposited by the purchaser on account of the purchase, together
with the penalty (if any) referred to in clause (b) of Section 28, and such
interest as the Certificate Officer may allow shall be paid to the purchaser.
Rule - 50. Certificate to purchase.--
(1)
Where a sale of immovable property has become
absolute, the Certificate Officer shall grant a certificate specifying the
property sold and the name of the person who at the time of sale is declared to
be the purchaser.
(2)
Such certificate shall bear date of the day
on which the sale became absolute.
Rule - 51. Delivery of property in occupancy of certificate-debtor.--
Where the immovable property sold is in the occupancy of
the certificate-debtor or of some person on his behalf, or of some person
claiming under a title created by the certificate-debtor subsequently to the
service of the notice issued under Section 7, and a certificate in respect
thereof has been granted under Rule 50, the Certificate Officer shall on the
application of the purchase, order delivery to be made by putting such
purchase, or any person whom he may appoint to receive delivery on his behalf,
in possession of the property and, if needed by removing any person who refuses
to vacate the same.
Rule - 52. Delivery of property in occupancy of tenant or other person.--
Where the property sold is in the occupancy of a tenant
or other person entitled to occupy the same, and a certificate in respect
thereof has been granted under Rule 50, the Certificate Officer shall, on the
application of the purchaser, order delivery to be made by affixing a copy of
the certificate of sale in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary mode, at some
convenient place, that the interest of the certificate-debtor has been
transferred to the purchaser.
Arrest and Detention
Rule - 53. Discretionary power to permit certificate debtor to show cause against detention in prison.--
(1)
The Certificate Officer may, before issuing a
warrant for the arrest of the Certificate-debtor, issue a notice calling upon
him to appear before the Certificate-Officer, on a day to be specified in the
notice, and show cause why he should not be committed to the Civil Prison.
(2)
Where appearance is not made in obedience to
the notice the Certificate Officer may issue a warrant for the arrest of the
certificate-debtor.
Rule - 54. Subsistence allowance.--
(1)
When a certificate has been signed either in
accordance with the provisions of Section 4, or on a requisition made under
Section 5, of certificate-debtor shall be arrested in execution of the
certificate unless and until the certificate-holder pays into Court such sum as
the Certificate Officer thinks sufficient for the subsistence of the
certificate-debtor from the time of his arrest until he can be brought before
the Certificate Officer.
(2)
When a certificate-debtor is committed to the
Civil Prison in execution of a certificate, the Certificate Officer shall fix
for his subsistence such monthly allowance as he may be entitled to according
to the scale fixed by the State Government for the subsistence of arrested
judgment-debtors, or where no such scale has been fixed, as the Certificate
Officer considers sufficient with reference to the class to which the
certificate-debtor belongs.
(3)
The monthly allowance fixed by the
Certificate Officer shall be supplied by the person upon whose requisition the
certificate was signed, by monthly payments in advance before the first day of
each month.
(4)
The first payment shall be made to the
Certificate Officer for such portion of the current month as remains unexpired
before the certificate-debtor is committed to the Civil Prison; and the
subsequent payment (if any) shall be made to the officer in charge of the Civil
Prison.
(5)
Sums disbursed by the certificate-holder for
the subsistence of the certificate-debtor in the Civil Prison shall be deemed
to be costs in the proceeding:
Provided that the certificate-debtor shall
not be detained in the Civil Prison or arrested on account of any sum so
disbursed.
Supplemental
Rule - 55. Register of certificate.--
(1)
Every Certificate Officer shall cause to be
kept in his office a register of certificates filed in his office under this
Act, and shall cause particulars of all such certificate to be entered in such
register.
(2)
Such register shall open during office hours,
for not less than two hours daily, and at such time as may be fixed by the
Collector, for inspection by any person who desires to inspect the same; and a
fee of * six paise shall be chargeable for every such inspection. [* Subs. for
one anna.]
Note 1-The fee should be prepaid by Court-fee
stamp affixed to the application.
Note 2-A surcharge at the rate of * twelve
paise shall be levied on the fee prescribed under this Rule [* Subs. for two
annas.]
A manager under the Court of Wards having
occasion to inspect a certificate register should be required to pay the fee under
this Rule.
Rule - 56. Payment by installments.--
(1)
Payment of the amount due under any
certificate may be made by installments, if the Certificate Officer in whose
office the certificate is filed so directs.
(2)
The payment of every such installment shall
be entered in the register referred to in Rule 55.
Rule - 57. Remittance to Certificate Officer of sums received under a certificate transferred for execution.--
When a copy of a certificate has been sent to another
officer under Section 13, sub-section (1), all sums received by such officer
under such certificate shall be remitted by him to the Certificate Officer in
whose office the original certificate is filed.
Rule - 58. Entry of satisfaction.--
When the whole or any portion of the amount due under a
certificate has been realised, the Certificate Officer in whose office the
original certificate is filed shall cause an entry of the fact to be made upon
the certificate and in the register referred to in Rule 55.
Rule - 59. Communication of satisfaction to other persons.--
When a copy of certificate has been sent to another
officer under Section 13, sub-section (1), or, when a certificate has been
signed upon a requisition, any satisfaction of the certificate whether in whole
or in part, shall be certified to such officer, or to the sender or such
requisition, as the case may be.
Forms
Rule - 60. Forms in Appendix.--
The forms set forth in the Appendix, shall be used with
such variation as circumstances may require.
Rule - 61. Other forms.--
Where no form is set forth in the Appendix, the
appropriate form in use in Civil Courts shall be used, with such modifications
as may appear to be necessary.