ORDER XXI(51-80) – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XXI. EXECUTION OF DECREES AND ORDERS

 

Payment under decree

 

51. Attachment of negotiable instruments

Where the property is a negotiable instrument not deposited in a Court, not in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

 

HIGH COURT AMENDMENTS

 

Allahabad.– In Order XXI, for rule 51, substitute the following rule, namely.-

“51. Where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution application the attachment shall, in the absence of any order passed by the Court, be deemed to subsist for a period of fifteen days after the dismissal of the application for execution and no fresh attachment of the same property shall be necessary if a fresh application is made, the attachment shall cease:

 

Provided that in the case of movable property the attachment shall not be continue after an order dismissing the execution application has been passed unless the decree-holder has given his consent in writing and therein deposit with the Court on his behalf a sum of money sufficient to meet the expenses of the attachment during the extended period.” (w.e.f. 1-7-1957)

 

52. 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 Court from which 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 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.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka.-In Order XXI, in rule 52, same as in Madras without the word “Explanation”. (w.e.f. 30-3-1967)

 

Madras.-In Order XXI, in rule 52, renumber the existing proviso as proviso (i) and insert the following proviso, namely:-

 

“(ii) Provided further that, where the Court attachment is determined to be prior receives or realizes such property, the receipt or realization shall be deemed to be on behalf of all the Courts in which there have been attachments of such property in execution of money decrees prior to the receipt of such assets.

 

Explanation.-Priority of attachment in the case of attachment of property in the custody of Court shall be determined on the principles as in the case of attachment of property not in the custody of Court.”

 

[Vide P Dis No 445 of 1935.]

 

53. Attachment of decrees

(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 decrees were passed by the same Court, then by order of such Court, and

 

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until-

 

(i) the Court which passed the decree sought to be executed cancels the notice, or

 

1[(ii) (a) the holder of the decree sought to be executed, or

 

(b) his judgment-debtor with the previous consent in writing of such decree-holder, or with the permission of the attaching Court, applies to the Court receiving such notice to execute the attached decree.]

 

(2) Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceeds to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

 

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

 

(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1) the attachment shall be made by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and, where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

 

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

 

(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this 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 2[with knowledge thereof or] after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

 

HIGH COURT AMENDMENTS

 

Allahabad.-(a) In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “to such other Court”, insert the words “and to any other Court to which the decree has been transferred for execution.”

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

 

Andhra Pradesh.- Same as in Madras.

Bombay.-In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “such other Court”, insert the words “and to any other Court to which the decree has been transferred for execution”, (w.e.f. 1-10-1983)

 

Calcutta.-(a) In Order XXI, in rule 53, sub-rule (1), in clause (b), after the words “to such other Court”, insert the words “and to any Court to which it has been transferred for execution” and after the words “requesting such other Court”, insert the words “or Courts”.

 

(b) In sub-rule (4), after the words “by sending to such other Court”, insert the words “and to an
y Court to which it has been transferred for execution”.

 

[Vide Notification No- 3516-G, dated 3rd February, 1953.]

 

Delhi.-Same as in Punjab.

 

Gauhati.-Same as in Calcutta.

 

Himachal Pradesh.-Same as in Punjab.

 

Karnataka.-Same as in Madras, (w.e.f. 30-3-1967) ‘: ! i ‘. ..

 

Kerala.-Same as in Madras. –

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madhya Pradesh.-(a) In Order XXI, in rule 53, in sub-rule (1), in clause (b) and in sub-rule (4), after the words “to such other-Court”, insert the words “and to any other Court to which the decree has been transferred for execution”, (w.e.f. 16-9-1960)

 

Madras.-In Order XXI, in rule 53, in rule (1), after clause (b), insert the following clause, namely:-

 

“(c) If decree sought to be attached has been sent for execution to another Court, the Court which passed the decree shall send a copy of the said notice to the former Court, and thereupon the provisions of clause (b) shall apply in the same manner as if the former Court had passed the decree and the said notice had been sent to it by the Court which issued it.”

 

[Vide GOMs. No. 2084-Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936.]

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 53, in sub-rule (1), for clause (b), substitute the following clause, namely:-

 

“(b) If the decree sought to be attached was passed by another Court, then by the issue to such other Court (or to the Court to which the decree may have been transferred for execution) of a notice by the Court before which the application has been made requesting such other Court (or the Court to which the decree may have been transferred for execution as the case may be) to stay the execution of the decree sought to be attached unless and until-

 

(i) the Court which has issued the notice shall cancel the same, or

(ii) the holder of the decree sought to be executed, or his judgment-debtor, with the consent of the said decree-holder expressed in writing or the permission of the attaching Court, applies to such other Court (or to the Court to which the decree may have been transferred for execution) to execute the attached decree.”

 

Punjab.-In Order XXI, in rule 53, in sub-rule (1), in clause (b), after the words “such other Court”, insert the words “and to the Court to which it has been transferred for execution”.

 

[Vide Notification No. 125-Gaz-XI-Y-14, dated 7th April, 1932 and Notification No. 225-R-XI-Y-14, dated 5th August, 1937.]

 

1. Subs, by Act. No. 104 of 1976, sec. 72, for sub-clause (ii) (w.e.f. 1- 2-1977).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

54. Attachment of immovable property

(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

 

1[(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.]

 

(2) The order shall be proclai
med at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate 1[and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-(a) In Order XXI, in rule 54, in sub-rule (2), at the end, for the full stop, substitute a common and insert the following words, namely:-

 

“and, where the property, whether paying revenue to Government or otherwise, is situate within Cantonment limits, in the office of the Local Cantonment Board and of the Military Estates Officer concerned.”

 

[Vide Notification No. 5691/35(a)-3(9), dated 27th September, 1941.]

(b) after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) The attachment shall be deemed to have been made against transferee without consideration from the judgment-debtor, from the date of the order of attachment; and as against all other persons from the date on which they respectively had knowledge of the order of attachment or the date on which the order was duly proclaimed under sub-rule (2) whichever is earlier.” (w.e.f. 5-3-1983)

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, for rule 54, substitute the following rule, namely:-

“54. Attachment of immovable property.-(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge, such order shall take effect, where there is no consideration for such transfer or charge, from the date of such order, and where there is consideration for such transfer or charge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged.

 

(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

 

(2) Copies of the order shall also be forwarded to the Collector with a request that appropriate entries showing the attachment levied on the property may be caused to be made in the revenue records, city survey records or village panchayat records as may be required in the particular case.

 

(3) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the District in which the land is situate, and also, where the property is situate within Cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned, and where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. (w.e.f. 1-10-1983). See also Goa Gazette, Extra. Sec. 1, No. 28, p. 385 (w.e.f. 1-4-1987).

 

Calcutta.-In Order XXI,-

(a) in rule 54, in sub-rule (2), at the end, insert the following words:-

“and also, where the property is situated within cantonment limits, in the office of t
he local Cantonment Board and the Military Estates Officer concerned”.

 

[Vide Notification No. 6149-G, dated 26th July, 1941.]

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Such order shall take effect, where there is no consideration for such transfer or charge, from the date of the order, and where there is consideration for such transfer, or charge for the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged, or from the date when the order is proclaimed under sub-rule (2) whichever is earlier.”

 

[Vide Notification No. 3516-G, dated 3rd February, 1933.]

 

Delhi.-Same as in Punjab.

 

Gauhati.-Same as in Calcutta.

Gujarat.-(1) In Order XXI, in rule 54, in sub-rule (1), at the end, insert the following words, namely:-

 

“Such order shall take effect, where there is no consideration for such transfer or charge, from the date of such order, and where there is consideration for such transfer or charge, from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred or charged.”

 

(2) In sub-rule (2), at the end, substitute comma for the full stop and insert the following words:-

 

“and also, where the property is situate within Cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned.” (w.e.f. 17-8-1961)

 

Himachal Pradesh.-Same as in Punjab.

Karnataka,-In Order XXI, in rule 54, in sub-rule (2), at the end, delete the full stop and insert the following words:-

 

“and where the property is situated within the limits of a Municipality or other local authority also in the principal office of the said Municipality or the local authority.” (w.e.f. 30-3-1967)

 

Kerala.-In Order XXI, in rule 54,-

(i) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property and thereupon, a conspicuous part of the Court-house and also in the village office or, in case there is no such office, in the Taluk office of the place in which the land is situate and, where the property is situated within the limits of a Municipality or Panchayat, in the office of the Municipality or Panchayat within the limits of which the property is situate.”

 

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) The attachment shall be deemed to have taken as against transferees without consideration from the judgment-debtor from the date of the order of attachment and as against all other persons from the date on which they respectively had knowledge of the order of attachment or the date on which the order was duly proclaimed under sub-rule (2) whichever is the earlier.” (w.e.f. 9-6-1959)

 

Madhya Pradesh.-(a) In Order XXI, in rule 54,-

(a) in sub-rule (2), at the end, delete the full stop and insert the words “and also where the property is situate within cantonment limits, in the office of the Local Cantonment Board and the Military Estates Officer concerned.”

(b) after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the
property and against all other transferees from the judgment-debtor from the date on which such order is made.”

 

Madras.-(a) In Order XXI, rule 54-

(a) for sub-rule (2), substitute the following sub-rule, namely:-

“(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house. Where the property is land paying revenue to the Government, a copy of the order shall be similarly affixed in the office of the Collector of the district where the land is situated. Where the property is situated within Cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the Military Estates Officer concerned, and where the property is situated within the limits of a Municipality, in the office of the Municipality within the limits of which the property is situated.”

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2), whichever is earlier.”

 

[Vide Notification No. 3409, dated 29th June, 1949.]

 

Orissa.-Same as in Patna.

 

Patna.-Same as in Madhya Pradesh (a).

[Vide Notification No. 21-R, dated 28th January, 1941.]

 

Punjab.-In Order XXI, in rule 54,- (a) in sub-rule (2), at the end, insert the following words, namely:-

 

“where the property is land situated in a Cantonment, copies of the order shall also be forwarded to the Cantonment Board and to the Military Estates Officer in whose area that Cantonment is situated.”

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

“(3) the order shall take effect, as against persons claiming under a gratuitous transfer from the judgment-debtor, from the date of the order of attachment, and as against others from the time they had knowledge of the passing of the order of attachment or from the date of the proclamation, whichever is earlier.”

 

[Vide Notification No. 125-Gaz XI-Y-14, dated 7th April, 1932; Notification No. 109-R1 XI-Y-14, dated 1st April, 1939 and Notification No. 273-R-XI-Y-14, dated 30th July, 1941.]

 

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

 

55. Removal of attachment after satisfaction of decree

Where-

 

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

 

(b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or

 

(c) the decree is set aside or reversed,

 

the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

 

HIGH COURT AMENDMENT

 

Allahabad.-In Order XXI, for rule 55, substitute the following rule, namely:-

“55. (1) Notice sh
all be sent to the sale officer executing a decree of all applications for reteable distribution of assets made under section 73 (1) in respect of the property of the same judgment-debtor by persons other than the holder of the decree for the execution of which the original order was passed.

 

(2) Where-

(a) the amount decreed [which shall include the amount of any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub-section (1)], with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or

 

(b) satisfaction of the decree [including any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub­section (1)] is otherwise made through the Court or certified to the Court, or

 

(c) the decree [including any decree passed against the same judgment-debtor, notice of which has been sent to the sale officer under sub-section (1)] is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of proclamation shall be affixed in the manner prescribed by the last preceding rule.”

 

[Vide Notification No. 1477/35(a)-3(3), dated 1st June, 1918.]

 

56. Order for payment of coin or currency notes to party entitled under decree

 

Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

 

1[57. Determination of attachment

 

(1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.

 

(2) If the Court omits to give such direction, the attachment shall be deemed to have ceased.]

 

1. Subs. by Act 104 of 1976, sec. 72, for rule 57 (w.e.f. 1-2-1977).

 

HIGH COURT AMENDMENT

 

Bombay.-In Order XXI, for rule 57, substitute the following rule, namely:-

“57. Determination of attachment.-Where any property has been attached in execution of a decree and the Court for any reason passed an order dismissing an execution application, the Court shall direct whether the attachment shall continue or cease. If the Court omits to make an order rand if the order dismissing the execution application is appealable the attachment shall continue till expiry of the period prescribed for filing an appeal or where appeal has been filed, till such further period as the appellate Court may direct.” (w.e.f. 1-10-1983)

 

1[Adjudication of claims and objections

 

1. Subs. by Act. No. 104 of 1976,sec. 72, for “Investigation of claims and objections” (w.e.f. 1-2-1977).

 

1[58. Adjudication of claims to, or objections to attachment of, property-

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the cl
aim or objection in accordance with the provisions herein contained:

 

Provided that no such claim or objection shall be entertained-

(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or

 

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

 

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

 

(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,-

 

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

 

(b) disallow the claim or objection; or

 

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

 

(d) pass such order as in the circumstances of the case it deems fit.

 

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

 

(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute;

 

but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive.

 

1. Subs. by Act 104 of 1976, sec. 72, for section 58 fo 63 (w.e.f. 1-2-1977).

 

59. Stay of sale

 

Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may-

 

(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or

 

(b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.]

 

[Rule 60 to 63-Omitted by Act No. 104 of 1976.]

 

HIGH COURT AMENDMENTS

 

Calcutta.-In Order XXI, after rule 63, insert the following rule, namely:-

“63A. When an attachment of movable property ceases, the Court may order the restoration of the attachment property to the person in whose possession it was before the attachment.” (w.e.f. 3-11-1933)

 

Gauhati.-Same as in Calcutta,

 

Patna.-In Order XXI, after rule 63, insert the following heading and rules, namely:-

 

“Garnishee Orders

 

63A. Where a debt {other than a debt secured by a mortgagor a debt recoverable only in Revenue Court or a debt the amount of which exceeds the pecuniary jurisdiction of the Court) has been attached under rule 46 and the
debtor prohibited under clause (i) of sub-rule (1) of rule 46 (hereinafter called the garnishee) does not pay the amount of the debt into Court in accordance with rule 46, sub-rule (3), the Court, on the application of the decree-holder, may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless otherwise ordered by the Court, be served on the judgment-debtor.

 

63B. (1) If the garnishee does not pay into Court the amount of the debt due from him to judgment-debtor, and if he does not appear in answer to the notice issued under rule 63A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice, and on such order execution may issue against the garnishee as though such order were a decree against him.

 

(2) If the garnishee appears in answer to the notice issued under rule 63A, and disputes his liability to pay the debt attached, the Court, instead of making an order as aforesaid, may order that any issue or question necessary for determining his liability be tried as though it were an issue in a suit and **** upon the determination of such issue shall pass such order upon the notice as shall be just.

 

63C. Whenever in any proceedings under the foregoing rules it is alleged by the garnishee that the debt attached belongs to some third person, or that any third person has a lien or charge upon or interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, upon such debt, and prove the same, if necessary.

 

63D. After hearing such third person and any other person who may subsequently to be ordered to appear, or in the case of such third or other person not appearing as ordered, the Court may pass such order as is provided in the foregoing rules, or make such other order as the Court shall think fit, upon such terms in all cases with respect to the lien charge or interest, if any, of such third or other person as shall seem just and reasonable.

 

63E. Payment made by, or levied by execution upon the garnishee in accordance with any order made under these rules shall be a valid discharge to him as against the judgment-debtor, and any other person ordered to appear under these rules, for the amount paid or levied although such order or the judgment may be set aside or reversed.

 

63F. The costs of any application for the attachment of a debt under the foregoing rules and of any proceedings arising from or incidental to such application shall be in the discretion of the Court. Costs awarded to the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order and in priority to the amount of his decree.

 

63G. Out of the amount recovered under the garnishee order the Court shall deduct a sum equal to the court-fee payable under the Indian Court-Fees Act on a plaint in a suit for recovery of the money and credit the same to the Government.

 

63H. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same condition as to appeals or otherwise as if were a decree.

 

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.”

Sale genrally

 

64. Power to order property attached to be sold and proceeds to be paid to person entitled

 

Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy
the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

 

HIGH COURT AMENDMENTS

 

Madras–In Order XXI, in rule 64, after the words “executing a decree may”, insert the words “after notice to the decree-holder and judgment-debtor”, (w.e.f. 10-4-1963)

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 64,-

 

(a) for the words “attached by it”, substitute the words “in respect of which it has made an order of attachment”.

 

(b) between the words “and” and “liable”, insert the words “which is” (w.e.f. 7-1-1936).

 

65. Sales by whom conducted and how made

Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madhya Pradesh.

 

Kerala.-Same as in Madhya Pradesh.

 

Madhya Pradesh.-In Order XXI, in rule 65, at the end, insert the following words:-

 

“Such officer or person shall be competent to declare the highest bidder as purchaser at the sale, provided that, where the sale is made in, or within the precincts of the Court-house, no such declaration shall be made without the leave of the Court.” (w.e.f. 16-9-1960)

 

66. Proclamation of sales by public auction

(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

 

(2) Such proclamation shall be draw up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-

 

(a) the property to be sold 1[or, where a part of the property would be sufficient to satisfy the decree, such part];

 

(b) the revenue assessed upon the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

 

(c) any incumbrance to which the property is liable;

 

(d) the amount for the recovery of which the sale is ordered; and

 

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:

 

1[Provided that where notice of the date for settling the terms of the proclamatioin has been given to the judgement-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

 

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties.]

 

(3) Every application for an order for sale under this rule shall be accompaniec by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making t
he verification, the matters required by sub-rule (2) to be specified in the proclamation.

 

(4) For the purpose of ascertaining the matters to be specified in the proclamation the Court may summon any person whom it thinks necessary to summon and ma> examine him in respect to any such matters and require him to produce any documeni in his possession or power relating thereto.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh and Kerala.-In Order XXI, in rule 66,-

 

(i) Same as in of Madras.

 

(ii) reletter clause (e) as clause (f) and insert to following clause, namely;-

“(e) the value of the property as stated (i) by the decree-holder and {ii} by the judgment-debtor;” (w.e.f. 13-10-1936)

 

(iii) in sub-rule (1), for the words “made”, substitute “drawn up.” (w.e.f. 12-11-1952)

 

Calcutta and Gauhati.-In Order XXI, in rule 66, in sub-rule (2), after clause (e), insert the following proviso, namely:-

 

“Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property but the proclamation shall include the estimate if any given by either or both the parties.”

 

Delhi and Himachal Pradesh.-In Order XXI, in rule 66, after sub-rule (2),-

(i) insert the following sub-rule, namely:-

 

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clause (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the Code of Civil Procedure.”

 

(ii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

 

Karnataka.-

In Order XXI, in rule 66, in sub-rule (2),-

(i) re-number clause (e) as clause (f) and insert the following clause, namely:-

 

“(e) The value of the property as stated by the decree-holder and the value of the property as stated by the judgment-debtor;”

(ii) in clause (d), omit the word “and”, (w.e.f. 30-3-1967)

 

Madhya Pradesh.-In Order XXI, in rule 66, in sub-rule (2), at the end, insert the words “including the decere-holder’s estimate of the approximate market price.” (w.e.f. 16-9-1960)

 

Madras.-In Order XXI, in rule 66,-

 

(i) in sub-rule (1), for the word “made”, substitute the words “drawn up”;

(ii) for sub-rule (2), substitute in the following sub-rule, namely:-

 

“(2) The term of such proclamation shall be settled in Court after notice to the decree-holder and judgment-debtor except in cases where notices have already been served under Order XXI, rule 64 and such proclamation shall state the time and place of sale and specify as accurately possible-

 

(a) the property to be sold,

 

(b) the revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government,

 

(c) any incumbrance to which the property is liable,

 

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

 

(e) the value of the property as st
ated (i) by the D.H. and (ii) by the J.D.,

 

(f) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.” (w.e.f. 5-9-1968)

 

Patna.-In Order XXI, in rule 66, in sub-rule (2),-

(i) omit the words “shall be drawn up after notice to the decree-holder and the judgment-debtor and”;

 

(ii) after clause (e), insert the following proviso, namely:-

“Provided that no estimate of the value of the property other then those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does vouch for the accuracy of either shall be inserted in sate proclamation.”

 

Punjab, Haryana And Chandigarh.-In Order XXI, in rule 66,-

(i) in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate -of the value of the property; but proclamation shall include the estimate, if any, given by either or both of the parties.”

 

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clauses (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the C.P. Code.”

 

(iii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

 

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

 

67. Mode of making proclamation

 

(1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).

 

(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.

 

(3) 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 Court, otherwise be given.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Karnataka-In Order XXI, in rule 67, after sub-rule (3), insert the following sub-rule, namely:-

 

“(4) Unless the Court so directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

 

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

 

Madras.-In Order XXI, in rule 67,-

 

(a) (i) for the Marginal heading, substitute the following marginal heading, namely:-

“Mode of publishing the proclamation of sale”;

 

(iii) in sub-rule (3), for the words “to make a separate proclamation for each lot”, substitute the words “to publish the proclamation of same separately for each lot”.

 

(b) after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 67, in sub-rule (1), at the end, omit the full stop and add the following words, namely:-

 

“and may, if the Court so directs, on the application of the decree-holder, be proclaimed and published simultaneously with the order of attachment.”

 

68. Time of sale

Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least 1[fifteen days] in the case of immovable property, and of at least 2[seven days] in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.

 

1. Subs. by Act. No. 104 of 1976, Sec 72 for “thirty days” (w.e.f. 1-2-1977).

 

2. Subs. by Act. No. 104 of 1976, Sec. 72 for “fifteen days” (w.e.f. 1-2-1977).

 

69. Adjournment or stoppage of sale

(1) The Court may, in its 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 court-house, no such adjournment shall be made without the leave of the Court.

 

(2) Where a sale is adjourned under sub-rule (1) or a longer period than 1[thirty] days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

 

(3) Every sale 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 into the Court which ordered the sale.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 69, for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Where a sale has been once adjourned under sub-rule (1), a fresh proclamation under rule 67 shall be made, under the judgment-debtor consents to wave it:

 

Provided that where the adjournment is for a period not longer than [thirty] days from the date originally fixed for sale, no fresh proclamation shall be necessary:

 

Provided also that the Court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under rule 66.”

 

Andhra Pradesh.-In Order XXI, in rule 67, in sub-rule (2), for the words “a fresh proclamation under rule 67 shall be made”, substitute the words “there shall be a fresh publication of the proclamation in the manner prescribed by rule 67”.

 

Bombay.-In Order XXI, in rule 67, in sub-rule (1), after the words “adjourn the sale”, insert the words “to specified day and hour”.

 

Karnataka.-Same as in Andhra Pradesh only adding the words “of sale” after “proclamation”, (w.e.f. 30-3-1967)

 

Kerala.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that no such fresh proclamation shall be necessary in cases where the sale has been adjourned on account of the absence of Presiding Judge or on account of the day fixed for sale bein
g declared a holiday.” (w.e.f. 10-3-1964)

 

Madras.-In Order XXI, in rule 67, for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by rule 67, unless the judgment-debtor consents to waive it, or the Court otherwise orders.” (w.e.f. 5-9-1968)

 

Orissa.-Same as in Patna.

 

Patna.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that the Court may dispense with the consent of any judgment-debtor who has not appeared in the proceedings.”

 

1. Subs, by Act. No. 104 of 1976, Sec. 72 for “seven” (w.e.f. 1-2-1977).

 

70. [Saving of certain sales.]

 

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14 (w.e.f. 1-1-1957).

 

71. Defaulting purchaser answerable for loss on re-sale

Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the Court by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

 

72. Decree holder not to bid for or buy property without permission

(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

 

(2) Where decree-holder purchases, amount of decree may be taken as payment-Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree small enter up satisfaction of the decree in whole or in part accordingly.

 

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such 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 decree-holder.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XXI, in rule 72,-

 

(a) omit sub-rules (1) and (3);

(b) re-number sub-rule (2) as sub-rule (1);

(c) in sub-rule (1) as so renumbered, for the words “with such permission”, substitute the words “the property sold”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

 

Patna.-In Order XXI, in rule 72,- (a) for sub-rule (1), substitute the following sub-rule, namely:-

 

“(1) No holder of a decree in execution of which property is sold shall be ‘, precluded from bidding for or purchasing the property unless on express order to that effect is made by the Court.”

 

(b) in sub-rule (2), for the words “with such permission”, substitute the words “the property”.

 

(c) for sub-rule (3), substitute the following sub-rule, namely:-

 

“(3) Where notwith
standing an order made under sub-rule (1) a decree-holder purchases the property by himself or through another person the Court shall, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the cost of such application and order and any deficiency of price which may happen on the re-sale and all expenses attending it shall be in the discretion of the Court.”

 

1[72A. Mortgagee not to bid at sale without the leave of the Court

(1) Notwithstanding anything contained in rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.

 

(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall be-

 

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot; and

 

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

 

(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the decree-holder under that rule.]

 

1. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

 

73. 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

 

74. 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 Court may direct the sale to be held at the nearest place of public resort, if it 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 authorized to act in his behalf applies to have the sale postponed till next day or, if a market is held at the place of salej the next market-day,

 

the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.

 

75. Special provisions relating to growing crops.

 

(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 its 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) Where 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 it.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Bombay.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words, “or, where it appears-‘to the Court that the crop [shall] be sold to greater advantage in an unripe state”.

 

Calcutta.-In Order XXI, in rule 75, in sub-rule (2),-

(a) after the words “Where the crop from its nature does not admit of being stored”, insert the words “or can be sold to greater advantage in an unripe state (e.g. as green wheat)”,

 

(b) between the words “tending” and “cutting” for the word “and” substitute the word “or”.

 

[Vide Notification No. 3615-G, dated 3rd February, 1933.]

 

Delhi.-Same as in Punjab.

 

Gauhati.-Same as in Calcutta.

 

Himachal Pradesh.-Same as in Punjab.

 

Karnataka.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. (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, unless the Court decides to proceed under the provisions of sub-rule (2) of this rule, the day of sale shall be so fixed as to admit of its 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 stored.

 

(2) Where the crop from its nature does not admit of being stored or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state, and the purchaser shall be entitled to enter on the land and do all that is necessary for the purpose of tending and cutting or gathering the said crop.” (30-3-1967)

 

Kerala.-Same as in Madras

[Vide Notification No. 81-3312/58, dated 7th April, 1959.]

 

Madhya Pradesh.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words “or, where it appears to the Court that the crop can be sold to greater advantage in an unripe state”, (w.e.f. 16-9-1960) Madras.-In Order XXI, in rule 75,-

 

(a) in sub-rule (1), after the words “yet been stored”, insert the words “unless the Court decides to proceed under the provisions of sub-rule (2) hereunder”,

 

(b) in sub-rule (2) after the words “being stored”, insert the words “or can be sold to greater advantage in an unripe state” and after the words “and gathered”, insert the words “or in such unripe state”, (w.e.f. 9-6-1959}

 

Patna.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. Where the property to be sold is a growing crop which can be sold to greater advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser shall be entitled to enter on the land to do all that is necessary for the purpose of tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of the crop ripening and reaped before the sale.”

 

[Vide Notification No. 1-R, dated 7th January, 1936.]

 

Punjab.-In Order XXI, in rule 75, in sub-rule (2), after the word “stored”, insert the words “or can be sold to greater advantage in an unripe state”.

 

[Vide Notification No. 2212-G, dated 12th May, 1909 and Notification No. 123-R/XI-Y-14, dated 28th April, 1938.]

 

76. Negotiable instruments and shares in corporations

Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker.

 

77. 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 pay ment 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 judgment-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.

 

78. Irregularity not to vitiate sale, but any person injured may sue

No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit 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.

 

79. 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 judgment-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 Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, of 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.

 

80. 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 Judge 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. Judge of the Court of (or as the case may be), in a suit by E.F. against AS.

 

(3) Until the transfer of such negotiable instrument or share, the Court may, by order a
ppoint some person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

 

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