When a notification has been published under Section 119, directing the making of a record, the provisions of Sections 83, 84, 87, 88, 90, 95 and 96, so far as they may be applicable, shall apply to such record as if it were a record-of-rights referred to in those Sections.
121. Power to record landlord's privileged lands on application of landlord or tenant - When any land is alleged to be a landlord's privileged land within the meaning of clause (a) of Section 118, then, on the application of the landlord or of any tenant of the land, and on his depositing the required amount for expenses a Revenue Officer may ascertain and record whether the land is or is not landlord's privileged land within the meaning of the said clause :
Provided that when a record of such lands has been or is being made by a Revenue Officer under Section 119, no application shall be entertained under this Section.
122. Procedure in inquiries - In any inquiry under this Chapter, a Revenue Officer,-
(1) shall have regard to any evidence that may be available in respect of the following among other matters, namely,-
(a) who originally reclaimed the lands and brought them under cultivation;
(b) whether the lands have at any time been let as landlord's privileged lands or as Raiyati lands; and
(c) whether the lands have, since their reclamation, been let year by year, or for specific periods, or for indefinite periods; and
(2) shall proceed in the prescribed manner; and
(3) shall receive in evidence any judgement, decree or order of a Civil Court or of the Deputy Commissioner, if the same be relevant;
but no such judgement, decree or order shall be conclusive proof that the lands are, or not landlord's privileged lands.
123. Presumption that lands are not landlord's privileged lands - In any inquiry by a Revenue Officer under this Chapter or by any Court, as to whether lands are or are not landlord's privileged lands, the Officer or Court shall presume until the contrary is proved that the lands are not landlord's privileged lands.
124. No land in certain villages to be recorded as landlord's privileged lands - Where any land in any village is entered as Manjhihas or Bet-kheta in any register prepared and confirmed under the Chota Nagpur Tenure Act, 1869 (Bengal Act 2 of 1869), a Revenue Officer acting under this Chapter shall not record any other lands in that village as being landlord's privileged lands.
125. Exclusion of unrecorded lands from category of landlord's privileged lands - When a record of landlord's privileged lands has been prepared under Section 119 for any area, no other lands in that area shall be deemed to be landlord's privileged lands.
126. Appeal - An appeal shall lie, in the prescribed manner and to the prescribed Officer from decisions and orders of a Revenue Officer under this Chapter.
Chapter XV Record-of-Rights and Obligations of Raiyats Having khunt-katti Rights, Village Headmen and other classes of tenants
127. Record-of-rights and obligations of Raiyats having Khuntkatti rights village headmen and other class of tenants - (1) The [State] Government may make an order directing that a record be prepared by a Revenue Officer of the rights and obligation in any specified local area of,-
(a) 'Raiyat having 'khunt-katti' rights,
(b) [village headman], or
(c) any other class of tenants, and that a settlement of fair rents to be paid by such persons or any of them be made.
Explanation. - The word "rights", as used in this sub-section, includes the right of a village-headman to hold his office as well as his right to hold land.
(2) A notification in the [* * *] [Official Gazette] of an order under this Section shall be conclusive evidence that the order has been duly made.
128. Application of certain Sections - (1) When a notification has been published under Section 127, directing the preparation of a record, the provisions of Section 81, Section 83, Section 84, sub-sections (1) and (2), and Sections 39 to 96, so far as they may be applicable, shall apply as if such records were referred to in those Sections.
(2) When any such notification directs that a settlement of fair rents be made, the provisions of Section 85, sub-sections (3), (4) and (5), Section 86, Section 89, and Sections 95 to 97, so far as they may be applicable shall apply to such settlement as if it were a settlement referred to in those Sections.
129. Notice of entries to interested persons - At the time of the final publication of a record prepared by a Revenue Officer under this Chapter that officer shall cause a copy of the entries therein to be served in the prescribed manner, on all persons interested in such entries, so far as such persons can be ascertained.
130. Suits to decide disputes as to entries in or omission from record - (1) Where there is a dispute regarding the correctness of any entry made in a record prepared under this Chapter, or regarding any incorrect omission therefor on a suit may be instituted before a Revenue Officer at any time within three months from the date of the certificate of the final publication of the record.
Provided that in any suit under this Section, the Revenue Officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties or between parties under whom they or any of them claim, in proceedings for the settlement of rents, where such issue has been tried and decided, or is already being tried, by a Revenue Officer acting under Section 86 in proceedings instituted after the final publication of the record.
(2) In all suits under this Section, the Revenue Officer shall, subject to any rules made in this behalf under Section 264, adopt the procedure laid down in Chapter XVI for the trial of suits before the Deputy Commissioner.
(3) An appeal shall lie, in the prescribed manner and to the prescribed officer, from the decision of the Revenue Officer in such suits.
131. Note of final decisions in record - A note of all decisions under subsection (1) of Section 133 and of all decisions on appeal under sub-section (3) of that Section shall be made in the record prepared under Section 127 and such note shall be considered as part of the record.
132. Evidential value of entries - When a record has been finally published under Section 128, or amended under Section 131, the entries made therein shall [in every suit, application or proceeding to which the landlord or a tenant or any person claiming to be the landlord or as tenant is a party] be conclusive evidence of the rights and obligations of the tenants to which such entries relate and of all the particulars recorded in such entries.
133. Revenue-Officer to have regard to origin and nature of tenancy and status of tenants - In making inquiries under this Chapter into the rights and obligations of tenants the Revenue Officer shall have regard to the origin and nature of each tenancy and the real status of the tenant, notwithstanding that the tenant may have been described in any document as a Thikadar or temporary lease holder or in any other similar terms.
134. Exclusion of unrecorded lands from category of khunt-katti lands - When a record-of-rights and obligations of Raiyats having khunt-katti rights has been prepared under this Chapter for any local area, no lands in such area, which are not entered in such record, shall be recognised as lands in respect of which khunt-katti rights can be acquired.
Chapter XVI Judicial Procedure in Matters Cognizable by The Deputy Commissioner
135. Place for holding Deputy Commissioner's Court - The Deputy Commissioner may hold a Court for hearing and determining suits and application under this Act, in any place within the local limits of his jurisdiction :
Provided that every hearing and decision shall be in open Court, and that the parties to the suit or application, or their agents, shall have had due notice to attend at such place.
136. Office for instituting suits and making applications - Suits and applications before the Deputy Commissioner under this Act shall respectively be instituted and made,-
(a) in the Revenue-office of the district; or
(b) when the cause of action has arisen within the local limits of the jurisdiction of a Deputy Collector, who is empowered to receive such suits or applications, then in the office of such Deputy Collector; or
(c) in the office of the Revenue Officer having jurisdiction to entertain the same.
137. Withdrawal of suits - The Deputy Commissioner may withdraw any suit [application or proceedings] from any Deputy Collector or Revenue Officer, who is exercising powers of the Deputy Commissioner under this Act and may try it himself or transfer it to any Deputy Collector.
138. Jurisdiction where land is situated in more than one district or subdivision -
(1) When any suit is instituted or application made in respect of any land comprised in a tenure or holding and such land is situated in more than one district or sub-division, the district or sub-division in which the greater part of such land is situated shall be deemed to be the district or sub-division in which the cause of action has arisen;
and if any question be raised respecting the district or sub-division in which the greater part of the land is situated, the Board or (if the land is situated in one district) the Deputy Commissioner shall decide the question.
(2) Except as provided in sub-section (1), no Deputy Commissioner shall exercise any jurisdiction under this Act in respect of any land situated beyond the local limits of his jurisdiction, even if, such land forms part of an estate the revenue of which is paid into the treasury of his district.
139. Certain suits and applications cognizable only by the Deputy Commissioner - The following suits and applications shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act, namely,-
(1) all suits for the delivery of leases or counterpart engagements;
[(2) (a) all suits and applications or the determination of the rent payable by a tenant for-
(b) all suits and applications not otherwise provided for in this Act for the assessment of rent upon, or for alteration of rent payable by a tenant for-
(c) all suits for arrears of rent on account of,- agricultural land, whether subject to the payment of rent or only to the payment of dues recoverable as if they were rent-
(3) (a) all applications to determine the existence, non-existence, nature or extent of-
(b) all applications for determination of the sum payable by any person in respect of-
(c) all applications for assessment of the sum fairly payable by any person, or for alteration of the sum payable by any person, in respect of-
(d) all applications for damages in respect of exceeding, or in respect of interference with the enjoyment of;
(e) all suits for arrears of anything payable in respect of,- [any of the following rights (not being rights created by a registered contract), namely, rights of pasturage], rights to take forest produce, rights of fishery or other similar rights;
(4) all suits and applications [under this Act] to eject any tenant of agricultural land or to cancel any lease of agricultural land;
(4-A) all suits for ejectment of a trespasser where the plaintiff claims as alternative relief that the defendant be declared liable to pay for the land in his possession a fair rent;
(5) all suits and applications to recover the occupancy or possession of any land from which a tenant has been unlawfully ejected by the landlord or any person claiming under or through the landlord;
(6) subject to the provisions of sub-section (5) of Section 74-A, all suits by or against a village headman for a declaration of title in, possession or ejectment from or recovery of his office or land comprised in his village-headman's tenancy, whether based or not on an allegation of the existence or non-existence of the relationship of landlord and tenant and whether brought or not by or against the landlord of such land;]
(7) all suits by landlords and others in respect of the rent of land, against any agents employed by them in the management of land or the collection of rents, or the sureties of such agents for money received or accounts kept by such agents in the course of such employment, or for papers in their possession; and
(8) all suits and applications in respect of which jurisdiction is conferred by this Act on the Deputy Commissioner:
[Provided that the Deputy Commissioner may subject to such rules as may be made in this behalf under Section 264, transfer any particular suit or application or any class of suits or application cognizable by him under this Section to a competent Civil Court for trial.]
[139A. Exclusive jurisdiction of Deputy Commissioner in certain cases. - Subject to the provisions of Chapter XII, no Court shall entertain any suit concerning any matter in respect of which an application is cognizable by the Deputy Commissioner under Section 139, and the decision of the Deputy Commissioner on any such application shall, subject to the provisions of this Act relating to appeal, be final.]
140. Collective suits or applications - Subject to such rules (if any) as may be made in this behalf under Section 264, a suit may be instituted before, or an application may be made to, the Deputy Commissioner collectively by or against any number of tenants holding land in the same village; and an allegation that such tenants are wrongly joined shall be no ground for dismissing a suit or refusing to hear an application;
but, no order shall be passed in any collective suit or on any such collective application unless the officer making the same is satisfied that all parties have had an opportunity to appear and make objection to any claims preferred against them;
and if at any time it appears to the Deputy Commissioner that the question between any two of the parties of whom one is so joined with others cannot conveniently be jointly tried or heard, the Deputy Commissioner may order a separate trial or hearing.
141. Order or decree in collective suit or on collective application to specify how far it effects each tenant - Every order or decree passed in any case which is tried or heard jointly under Section 140 shall specify the extent to which each of the tenants named in the order or decree shall be affected thereby.
142. Suit by co-sharer landlord for rent - (1) Notwithstanding anything contained in Section 257, a co-sharer landlord may institute a suit to recover from a tenant,-
(a) his share of the rent, when such share is collected separately, or
(b) the whole of the rent due to the plaintiff and his co-sharers, when all or any of his cosharers, who refuse to join in the suit are made defendants therein.
(2) When in a suit instituted under clause (b) of sub-section (1), the plaintiff is unable to ascertain what rent is due for the whole tenure or holding, or whether the rent due to the other co-sharer landlords has been paid or not, owing to the refusal or neglect of the tenant or the said landlords to furnish him with correct information on these points or either of them, the Deputy Commissioner shall determine,-
(i) what sum (if any) is due to the plaintiff for rent, interest thereon, and costs, and
(ii) what sums (if any) are due to the said landlords, respectively on account of their share of the rent and interest therein, for the period in respect of which the suit is brought; and shall decree the suit accordingly.
(3) Notwithstanding anything contained in Explanation 1 to Section 47, or in Section 196, a decree awarding to a plaintiff a sum referred to in clause (i) of subsection (2) shall, as regards the remedies for enforcing the same, be as effectual as a decree obtained by a sole landlord or an entire body of landlords in a suit brought for the rent due to all the co-sharers.
(4) When the sums due from a tenant to any co-sharer landlord are determined under clause (ii) of sub-section (2), in respect of any period, then no further suit shall lie against such tenant for rent alleged to be due to such landlord in respect of that period.
143. Institution of suits by presentation of statement of claim - Suits before the Deputy Commissioner under this Act shall be instituted by presenting a statement of claim showing,-
(a) the name, description and place of abode of the plaintiff;
(b) the name, description and place of abode of the defendant so far as they can be ascertained;
(c) the substance to the claim; and
(d) the date of the cause of action.
144. Additional particulars required in statement of claim in certain suits and in certain applications - (1) In all suits and applications before the Deputy Commissioner for the recovery of an arrear of rent or for the ejectment of a tenant from any tenure or holding or for the recovery of occupancy or possession of any tenure or holding, the statement of or application shall contain, in addition to the particulars required by Section 143,-
(a) a specification of situation and designation of the land held by the tenant, and
(b) a specification of the extent and boundaries of such land, or (if the plaintiff is unable to specify the extent or boundaries) a description sufficient for the identification of the land.
(2) In all suits and applications referred to in sub-section (1), and in all other suits and applications before the Deputy Commissioner under this Act relating to the rent of land or to any right or easement arising out of land.
If a survey has been made and a record-of-rights has been finally published under this Act or under any law in force before the commencement of this Act, in respect of the land to which the suit or application relates, the statement of claim on application shall further contain the following particulars, namely,-
(i) a list of the survey plots comprised in the tenancy,
(ii) a statement of the rental of the tenancy according to the record-of-rights, and
(iii) a copy of all entries in the record-of-rights, in regard to the subject-matter of the suit or application, unless the Deputy Commissioner is satisfied for reasons to be recorded in writing that it is not necessary that such particulars or any of them should be furnished or that the plaintiff was prevented by any sufficient cause from furnishing such particulars or any of them :
Provided that in all cases in which the Deputy Commissioner admits a statement of claim or application which does not contain the said particulars, he may direct the supply, without payment of fee of a verified or certified copy of, or extract from, the record-of-rights relating to the tenancy and the question in dispute in the suit or application.
(3) Where since the record-of-rights was prepared and finally published an alteration has been made in the area of the tenancy, the statement of claim must further show how the amount of the rent claimed in the suit has been calculated.
145. Substitution of copies or extracts for original documents admitted in evidence - When any account books, rent-rolls, collection paper, measurement-papers of maps have been produced by the landlord before the Deputy Commissioner in any suit or proceeding under this Act, and have been admitted in evidence in the suit or proceeding or in any inquiry pending before the Deputy Commissioner;
copies of extracts from, such documents, certified by a duly authorised officer of the Court of the Deputy Commissioner to be true copies of extracts, may, with the permission of the Deputy Commissioner, be substituted on the record for the originals, which may then be returned to the landlord;
and thereafter copies of extracts, so certified, may be admitted in evidence in any other suit or proceeding instituted before the same or any other Deputy Commissioner under this Act, unless the Deputy Commissioner before whom they are produced sees fit to require the production of the originals.
146. Statement of claim by whom to be presented - The statement of claim shall be presented by the plaintiff or by an agent of the plaintiff, who is acquainted with the facts of the case.
147. Signature and verification of statement of claim - The statement of claim shall be subscribed and verified at the foot by the plaintiff or his agent, in the following form- "I, 'A', 'B', do declare that the above statement is true to the best of my knowledge, information and belief."
148. Production of documents by plaintiff - (1) If the plaintiff relies in support of his claim on any document in his possession he must produce such document before the Deputy Commissioner at the time of presenting his statement of claim.
(2) If such document be not so produced, it shall not afterwards be admitted unless the Deputy Commissioner, for sufficient reasons to be recorded in writing, thinks fit to admit it.
149. Production of documents by defendant - If the plaintiff requires the production of any document in the possession or power of the defendant, he may, at the time of presenting his statement of claim, deliver a description of the document to the Deputy Commissioner, in order that the defendant may be directed to produce the document.
150. Return or amendments of statement of claim - If the statement of claim does not contain the several particulars required by Section 143 or by Sections 143 and 144, as the case may be, or is not subscribed and verified as required by Section 147, the Deputy Commissioner may return the statement of the plaintiff, or may at his discretion allow it to be amended.
151. Issue of summons to defendant - If the statement of claim is in proper form the Deputy Commissioner shall direct the issue of a summon to the defendant in the prescribed form [and also of a copy of the plaint or, if there are two or more defendants, of such portion of the plaint as relates to him.]
152. Attendance of defendant personally or by agent - If the plaintiff requires the personal attendance of the defendant and satisfies the Deputy Commissioner that such personal attendance is necessary, or if the Deputy Commissioner of his own accord requires such personal attendance, the summons shall contain an order for the defendant to appear personally on day to be specified in the summons; otherwise the summons shall order the defendant to appear personally or by an agent, who is acquainted with the facts of the case.
153. Production of documents and witnesses - The said summons shall order the defendant to produce any document which he has in his possession and of which the plaintiff demands inspection, or upon which the defendant may intend to rely in support of his defence;
and shall also enjoin the defendant to bring his witnesses with him if they are willing to attend without issue of process.
154. Deposit of cost of serving summons - If the amount of the cost of serving the summons be not deposited in the prescribed manner, the claim shall be rejected; but in such case, the plaintiff may present another statement of claim at any time within the period provided by this Act for the limitation of suits.
155. Procedure when neither party appears - If on the day fixed by the summons for the appearance of the defendant, or on any subsequent day to which the hearing of the case may be postponed prior to the framing of issues as provided in Section 167 neither of the parties appears in person or by agent, the case shall be struck off with liberty to the plaintiff to bring a fresh suit unless precluded by the provisions for the limitation of suits contained in this Act.
156. Procedure when only the defendant appears - If on such day, only the defendant appears the Deputy Commissioner shall dismiss the suit unless the defendant admits the claim or part thereof in which case the Deputy Commissioner shall pass a decree against the defendant upon such admission without costs and where part only of the claim has been admitted shall dismiss the suit so far as it relates to the remainder:
Provided that such decree if there be more than one defendant, shall be only against the defendant who makes the admission.
157. Procedure when only the plaintiff appears - If, on such day, only the plaintiff appears, the Deputy Commissioner upon proof that the summons has been duly served shall proceed to examine the plaintiff or his agent, and, after considering the allegations of the plaintiff and any documentary or oral evidence adduced by him, may either dismiss the case, or postpone the hearing of it to a future day for the attendance of any witness whom the plaintiff may wish to call, or decree the suit ex-parte against the defendant.
158. Production of documents by defendant - If the defendant relies on any document in support of his defence, he shall produce it before the Deputy Commissioner at the first hearing of the suit; and if such document is not so produced it shall not afterwards be admitted, unless the Deputy Commissioner for sufficient reasons to be recorded in writing, thinks fit to admit it.
159. Hearing of defendant on day to which case is postponed - If the defendant appears on any subsequent day to which the hearing of the suit may be postponed under Section 157, the Deputy Commissioner may, upon such conditions (if any) as to costs or otherwise as he may think proper, allow the defendant to be heard in answer to the suit as if he had appeared on the day fixed for his attendance.
160. Exemption of women from personal attendance - A female plaintiff or defendant shall not be required to attend in person if of a rank or class which, according to the customs and manners of the country, would render it improper for her to appear in public.
161. Employment of agents - (1) Any party to a suit before the Deputy Commissioner under this Act may employ an agent to conduct the case on his behalf; but, the appointment of an agent shall not excuse the personal attendance of the plaintiff or defendant in cases where his personal attendance is required by the summons or by any order of the Deputy Commissioner.
(2) Processes served on any such agent shall be as effectual for all purposes in relation to the suit as if they had been served on the party in person and all the provisions of this Act relating to the service of processes on a party to the suit shall be applicable to the service of processes on such agent.
162. Power to grant time or adjourn hearing - The Deputy Commissioner may, in any case, grant time to the plaintiff or defendant to proceed in the prosecution or defence of a suit, and may also from time to time, in order to secure further evidence, or for other sufficient reason to be recorded by him, adjourn the hearing or further hearing of any case in such manner as he may think fit.
163. Examination and cross-examination of parties or their agents and of witnesses, written statement by defendant - (1) When both parties appear in person on the day named in the summons, or upon any subsequent day to which the hearing of the case may be adjourned under Section 162, the Deputy Commissioner [may proceed to examine them, and if he examines them] either party or his agent may cross-examine the other.
(2) If either of the parties is not bound to attend personally, any agent by whom he appears [may] be examined and cross-examined in like manner as the party himself would have been if he had attended personally.
(3) At his first appearance, or at any time before the issues are framed, the defendant may, with the leave of the Deputy Commissioner, file a written statement of his defence.
(4) Such statement shall be verified in the manner provided in Section 147.
(5) If either of the parties produces a witness on the day aforesaid, the Deputy Commissioner may take the evidence of such witness.
164. Conduct and record of examination - (1) The examination of the parties or their agents shall be conducted according to the law for the time being in force for the examination of witnesses.
(2) The depositions of parties, agents and witnesses shall be recorded in English [* * *].
165. Power to direct attendance of party whose agent cannot answer material question - If the agent of either party is unable to answer any material question relating to the case, which the Deputy Commissioner is of opinion that the party whom he represents ought to answer and likely to be able to answer if interrogated in person, the Deputy Commissioner may postpone the hearing of the case to a future day, and may direct that such party shall attend in person on such day, and, if such party fails to appear in person on the day appointed, the Deputy Commissioner may decide the suit as in case of default, or make such other order as he may deem proper in the circumstances of the case.
166. Decree when to be made - If after the examination [referred to in] Section 163, and after the examination of any witness, who may attend to give evidence on behalf of the parties, and after a consideration of the documentary evidence adduced, a decree can properly be made without asking further evidence, the Deputy Commissioner shall make a decree accordingly.
167. Power to postpone trial to take further evidence - If it appears that the parties are at issue on any question upon which it is necessary to hear further evidence, the Deputy Commissioner shall frame issues, and shall fix a day for the examination of witnesses and the final hearing of the suit; and the trial take place on that day, unless there be sufficient reason for adjourning it, which reason shall be recorded by the Deputy Commissioner.
168. Production of witnesses - The parties shall produce their witnesses on the day of the trial; and if either party requires assistance to procure the attendance of a witness on such day, either to give evidence or to produce a document, he shall apply to the Deputy Commissioner in sufficient time before such day to enable the witness to be summoned and to attend on that day; and, if the application be made in sufficient time as aforesaid, the Deputy Commissioner shall issue a summon requiring such witness to attend.
169. Procedure when neither party appears on day fixed for final hearing of suit -
(1) If, on the day fixed for the final hearing of the suit, neither of the parties appears, the case shall be struck off under the conditions provided in Section 155.
(2) If, on such day, only one of the parties appears, the suit may be tried and determined, in the absence of the other party, upon such proof as may then be before the Court.
170. Judgement - (1) The Deputy Commissioner shall pronounce judgement in open Court.
(2) The judgement shall be written in English, and shall contain the reasons for the decision, and shall be dated and signed by the Deputy Commissioner at the time when it is pronounced. [* * *]
171. Local inquiries - (1) The Deputy Commissioner may, at any stage of a suit or other proceeding before him under this Act,-
(a) cause a local inquiry and report respecting the matter in dispute to be made by any officer subordinate to him, or by any other officer of the [Government] with the consent to the authority to whom such officer is subordinate, or by any other person whom the Deputy Commissioner may deem fit; or
(b) himself proceed to the spot and make such local inquiry in person.
(2) The provisions of the law for the time being in force, relating to local inquiries by Commissioner, under orders of Civil Courts, shall apply to any local inquiry made under clause (a) of sub-section (1), and, so far as they are applicable, also to inquiries made under clause (b) of that sub-section.
(3) Where the Deputy Commissioner makes a local inquiry in person, he shall forthwith record on the proceedings any relevant facts which he has observed in the course of the inquiry; and such record shall be received as evidence in the suit or other proceeding aforesaid.
172. Payment into Court by defendant, after tender to plaintiff - (1) The defendant in any suit before the Deputy Commissioner under this Act may, if he has duly tendered the same to the plaintiff before the institution of the suit pay into Court such sum of money as he may consider to be due to the plaintiff, without paying in any costs incurred by the plaintiff up to the time of such payment, and such sum shall immediately be paid out of Court to the plaintiff.
(2) If, after such payment, the plaintiff elects to proceed with the suit and ultimately obtains a decree for no more than what was paid into Court, he may be charged with all costs of the suit incurred by the defendant but, if the plaintiff ultimately obtains a decree for more than what was paid into Court, the defendant may be charged with all costs of the suit.
173. Payment into Court by defendant, without prior tender to plaintiff - (1) The defendant in any suit before the Deputy Commissioner under this Act may, without having tendered the same to the plaintiff before the institution of the suit, pay into Court such sum of money as he may, consider to be due to the plaintiff, together with the costs (to be fixed by the Deputy Commissioner, if necessary, as upon a suit originally instituted for the amount so paid into Court) incurred by the plaintiff up to the time of such payment; and such sum shall immediately be paid out of Court to the plaintiff. (2) If, after such payment, the plaintiff elects to proceed with the suit, and ultimately obtains a decree for no more than what was paid into Court, he may be charged with ail costs of the suit incurred by the defendant subsequently to such payment; but, if the plaintiff ultimately obtains a decree for more than what was paid into Court, the defendant may be charged with costs as upon a suit originally instituted for the whole amount for which the plaintiff ultimately obtains a decree, but shall have credit there out for the amount of costs paid into Court by him in the first instance.
174. Prohibition of interest on sums paid into Court - From the date on which any sum is paid into Court by the defendant under Section 172 or Section 173 no interest shall be allowed to the plaintiff on such sum, whether it be in full satisfaction of his claim or falls short thereof.
175. Power to award damages to plaintiff in rent suit - [Repealed by the Chota Nagpur Tenancy (Amendment) Act, 1938 (Bihar Act 2 of 1938), Section 24.]
176. Power to award compensation to defendant in rent suit - [Repealed by the Chota Nagpur Tenancy (Amendment) Act, 1938 (Bihar Act 2 of 1938), Section 24]
177. Procedure where third-party claims right to receive rent - When in any suit before a Deputy Commissioner under this Act between a landlord and a tenant [the tenant or a third person pleads that the right to receive the rent of the land or tenure cultivated or held by the tenant belongs to such third person] on the ground that such third person or a person through whom he claims has actually and in good faith received and enjoyed such rent before and up to the time of the institution of the suit, such third person shall be made a party to the suit, and the question of the actual payment of the rent to such third person in good faith shall be inquired into, and the suit shall be decided according to the result of such inquiry :
Provided that such decision shall not affect the right of any party, who may have a legal title to such rent, to establish such title by suit in a Civil Court if instituted within one year from the date of the decision.
178. Suit for ejectment of non-occupancy Raiyat- Cancelment of lease of any tenant for arrear of rent - (1) Any landlord desiring to eject a non-occupancy Raiyat on the ground that he has failed to pay an arrear of rent, or to cancel the lease of any tenant on account of the non-payment of arrears of rent, may sue for such ejectment or concealment and for the recovery of the arrears in the same suit, or may, in a suit for such ejectment or cancelment, adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears.
(2) In all cases of suits for the ejectment of a non-occupancy Raiyat for nonpayment of arrears of rent, or for the cancelment of a lease for non-payment of arrears of rent, the decree shall specify the amount of the arrears; and if such amount together with the interest and costs of suit, be paid into Court, within thirty days from the date of the final decree, the decree shall not be executed.
(3) The Deputy Commissioner may, for special reasons to be recorded in writing, extend the period of thirty days mentioned in sub-section (2).
[178A. Non-occupancy Raiyat entitled to appropriate produce from the holding grown before the delivery of possession. - A non-occupancy Raiyat against whom a decree or order of eviction has been made under Section 178 shall be entitled to cut and appropriate the crop grown by him on the holding or portion thereof before but not after the delivery of possession through the Court.]
179. Power of Deputy Commissioner to grant lease to Raiyat in default of landlord - If a decree is given for the grant of a lease to a 'Raiyat and the landlord fails, for a period of three months, after the date of the decree, to grant such lease, the Deputy Commissioner may grant a lease in conformity with the terms of the decree, under his own hand and seal; and such lease shall have the same force and effect as if granted by the landlord.
180. Procedure where tenant fails to deliver counterpart engagement to landlord - If a decree is given for the delivery of a counterpart engagement by a tenant to a landlord, and the tenant fails, for a period of three months after the date of the decree, to deliver such counterpart, the decree shall be evidence of the amount of rent claimable from such tenant, and a copy of the decree under the hand and seal of the Deputy Commissioner shall have the same force and effect as a counterpart engagement delivered by the tenant to the landlord.
Execution of Decrees and Orders of the Deputy Commissioner
181. Limitation of time for application for execution - [No application for the execution of a decree or order passed by the Deputy Commissioner under this Act shall be entertained unless such application be made] within three years from-
(a) the date on which the decree or order is signed, or
(b) where there has been an appeal, the date of the final decree or order of the appellate Court, or
(c) where there has been a review of judgement, the date of the decision on the review.
[181A. Application for execution by assignee of rent-decree. - An application for the execution of a decree for arrears of rent obtained by a landlord shall not be made by an assignee for the decree unless the landlord's interest in the land has become and is vested in the assignee.]
182. Decrees and orders by what Court to be executed - A decree or order passed by a Deputy Commissioner under this Act may be executed either by his own Court or by any other prescribed Court.
183. Form of application for execution - Every application for the execution of a decree or order passed by a Deputy Commissioner under this Act shall be in writing, shall be made in the prescribed form, and shall be verified by the applicant or his agent in the form provided in Section 147.
184. Issue of process of execution - Process of execution may be issued against either the person or the property of a judgement-debtor, but shall not be issued simultaneously against both person and property;
[Provided that,-
(a) process of execution shall not be issued against the person of a judgement-debtor in satisfaction of a decree for arrears of rent due in respect of a holding or of a Bhuinhari tenure;
(b) the movable property of the judgement-debtor shall not, without his consent in writing, be attached or sold in execution of a decree for arrears of rent due in respect of a holding unless the decree cannot be satisfied by the attachment and sale of the holding for the arrears of the rent of which the decree was passed.]
185. Form of warrant of execution against person or movable property - Every warrant of execution against the person or movable property of a judgement-debtor shall be in the prescribed form.
186. Exemption from attachment and sale - The following particulars shall be exempted from attachment and sale in execution of any decree or order passed by a Deputy Commissioner under this Act, namely,-
(a) the necessary wearing apparel and bedding of the judgement-debtor, his wife and children;
(b) tools and implements of husbandry, and such cattle and seed grain as may, in the opinion of the Deputy Commissioner, be necessary to enable the judgement-debtor to earn his livelihood as an agriculturist;
(c) the materials of houses and other buildings belonging to and occupied by agriculturist;
(d) books of account;
(e) any right of personal service;
(f) stipends and gratuities allowed to [* * *] pensioners of the [Government] and political pensions;
(g) the wages of labourers and domestic servants;
(h) a right to future:
Provided that nothing in this Section shall be deemed to exempt the materials of houses and other buildings from attachment of sale in execution of decrees for rent.
Explanation. - The particulars mentioned in clauses (f) and (g) are exempt from attachment or sale whether before or after they are actually payable.
[186A. Restrictions on the execution of the decree. - A decree for arrears of rent obtained against a Raiyat or an under-raiyat shall not be executed,-
(a) by the detention in the civil prison of the judgement-debtor, or
(b) by the sale of houses and other buildings with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment belonging to the Raiyat or under-raiyat occupied by him:
Provided that any such house and building and the materials and the site thereof and the land immediately appurtenant thereto and necessary for their enjoyment may be sold in execution of a decree for arrears of rent due in respect of the site of such house or building.]
187. Indication of movable property to be seized - (1) Any movable property required to be seized under warrant of execution shall, if practicable be described in a list to be furnished by the judgement-debtor; but, if the creditor is unable to furnish such list, he may apply for a general seizure of the debtor's effects to the amount of the judgement and costs.
(2) In either case, the property to be seized shall be pointed out by the creditor or his agent to the officer entrusted with the execution of the warrant.
188. Duration of warrant of execution - Every warrant of execution shall bear the date of the day on which it is signed by the Deputy Commissioner and shall continue in force for such period as the Deputy Commissioner may direct, not being more than sixty days from such date.
189. Second and successive warrants of execution - Second and successive warrants of execution may be issued by order of the Deputy Commissioner, on the application of the judgement-debtor, after expiration of the period fixed for the continuance in force of a previous warrant.
190. Notice when to be given before issue of warrant of execution - (1) A warrant of execution shall not be issued upon any decree or order without previous notice to the party against whom execution is applied for if when application for the issue of the warrant is made a period of more than one year has elapsed from date of the decree or order, or from the date of the last previous application from execution.
(2) A warrant of execution shall not be issued against the heir or other representative of a deceased party without previous notice to such representative to appear and be heard.
191. Procedure when judgement-debtor is arrested - (1) If a warrant is issued against the person of a judgement-debtor, the officer charged with the execution of the warrant shall bring him with all convenient speed before the Deputy Commissioner.
(2) If the decree in execution of which the judgement-debtor was arrested is a decree for money, and if he does not immediately deposit in Court the full amount specified in the warrant or make arrangements, satisfactory to the judgement-creditor, for the payment of the same, or satisfy the Deputy Commissioner that he has no present means of paying the same, the Deputy Commissioner shall send him to the civil jail thereto remain for such time as may be directed by warrant addressed to the keeper of the jail, unless in the meantime, he pays the said amount:
Provided that no judgement-debtor shall be imprisoned in the execution of a decree under this Act for a longer period than six months or (if the decree is for the payment of a sum of money net exceeding fifty rupees) six weeks.
(3) If the decree in execution of which the judgement-debtor was arrested is a decree for the delivery of paper or account and if the paper or account are not immediately delivered by him to the Deputy Commissioner, the Deputy Commissioner may commit him to the civil jail, thereto remain for such time not exceeding six months as the Deputy Commissioner may direct, unless in the meantime, he delivers the papers or accounts according to the term of the decree.
192. Further proceedings after discharge from jail - (1) When any judgement-debtor has been discharged from the civil jail, he shall not be imprisoned a second time under the same decree or order.
(2) If the amount, due under such decree or order does not exceed fifty rupees, the Deputy Commissioner may declare such discharged person to be absolved from liability thereunder.
(3) In other cases, the discharge shall not extinguish the liability of the discharged person under such decree or order or exempt property belonging to him from attachment in execution thereof.
193. Diet-money for subsistence of prisoners - Any person who applied for a warrant of execution against the person of a judgement-debtor shall deposit in Court, at the time of the issue of the warrant diet-money for thirty days, at such rate as the Deputy Commissioner may direct, for the subsistence of the prisoner.
(2) The said person shall also pay diet-money, at the same rate before the commencement of each succeeding month of the imprisonment, and, if he fails to make any such payment, the prisoner shall be discharged.
(3) All diet-money spent in providing subsistence for any prisoner shall be added to the costs in the suit; and any diet-money not so spent shall be returned to the person, who paid it.
194. Execution of decree or order for ejectment or re-instatement of cultivator - (1) If the decree or order is for the ejectment of any cultivator from land occupied by him or for the reinstatement of any cultivator in the occupancy of the land from which he has been ejected the decree or order shall be executed by giving the possession or occupancy of the land to the person entitled by the decree or the order to such possession or occupancy.
(2) If any opposition to the execution of the order for giving such possession or occupancy is made by the party against whom the order is made, Deputy Commissioner shall, in the exercise of his powers as a Magistrate give effect to the order,
195. Execution of decree or order for cancelment of lease, for ejectment or reinstatement of tenant not being an actual cultivator - If the decree or order is for the cancelment of any lease or the ejectment of any tenant (not being an actual cultivator) or for the reinstatement of any tenant (not being an actual cultivator), in the possession of tenancy from which he has been ejected the decree or order shall be executed,-
(a) by proclaiming its substance to the cultivators or other occupants of the tenancy by beat of drum, or
(b) by notification reciting the substance of the decree or order and affixed in some conspicuous place within, or adjacent to the tenancy, or
(c) in such other manner as may be prescribed.
196. Execution of decree or rent given in favour of the sharer in undivided estate or tenure - If a decree is given by the Deputy Commissioner under this Act in favour of a sharer in a joint undivided estate or tenure, for money due to him on account of his share of the rent of any tenure comprised in such undivided estate or tenure, application for sale of such tenure shall not be received unless execution has first been taken out against any movable property which the judgement-debtor may possess within the district in which the suit was instituted and unless the sale of such property, if any, has proved insufficient to satisfy the decree;
and such tenure may then, with the previous sanction of [Deputy Commissioner] but not otherwise, be sold, in execution of the decree, in the manner in which any other immovable property may be sold in execution of a decree for money under the provisions of clause (b) of Section 210.
197. Execution of rent decree obtained by a co-sharer landlord - When one or more co-sharer landlords applies or apply for the execution of a decree obtained in a suit instituted under clause (b) of Section 142, by the sale of a tenure or holding, the Court executing such decree shall, before proceeding to sell the tenure or holding, give notice of the application for execution to the other co-sharers.
198. Execution against immovable property in certain cases, if judgement not satisfied - In the execution of any decree or order by the Deputy Commissioner under this Act for the payment of money, not being money due or recoverable as an arrear or rent;
if satisfaction of the decree or order, cannot be obtained by execution against the person or movable property of the debtor within the district in which the suit was instituted, the judgement-creditor may apply for execution against any immovable property belonging to such debtor, and such immovable property may, with the sanction of the Commissioner, but not otherwise, be brought to sale in the manner provided in clause (b) of Section 210.
Sales in Execution of Decree of the Deputy Commissioner
199. Notification of intended sale of movable property, and custody of property -
(1) For the purpose of executing a warrant of execution issued by the Deputy Commissioner under this Chapter against the movable property of a judgement-debtor, the officer charged with the execution of the warrant shall prepare a list of the property pointed out by the judgement-creditor; and shall publish a proclamation specifying the day upon which the sale is intended to be held, and a copy of the said list, at the intended place of sale and at the residence of the debtor.
(2) A copy of the said list and proclamation shall be transmitted to the Deputy Commissioner, and shall be affixed in his office.
(3) Until the day of sale, the said property shall remain in the custody of the officer executing the warrant [or of some other person to whom such officer by a writing under his hand commit the custody thereof]. Such person shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
200. Interval between seizure and sale - No sale of any movable property (other than perishable property) seized in execution under this Chapter shall be made until the expiration of a period of ten days after the day on which the property was so seized.
201. Place and manner of sale - (1) Such sale shall be held at the place where the property is deposited or at the nearest market or other place of public resort if the officer executing the warrant thinks it is likely to sell there to better advantage.
(2) The property shall be sold by public auction in one or more lots as the officer executing the warrant may think advisable and if the judgement-debtor, and the costs of the execution and sale, are realised by the sale of a portion of the property; the execution shall immediately be withdrawn with respect to the remainder.
202. Prohibition of purchase by officers - Officers executing warrants for the sale of property under this Chapter and all persons employed by, or subordinate to such officers, are prohibited from purchasing, either directly or indirectly any property sold by such officers.
203. Postponement of sale if fair price be not offered - If on the property being put up for sale, no price which the officer executing the warrant considers fair is offered for it, and the owner of the property, or some person authorised to take action on his behalf, applies to have the sale postponed until the next day, or the next market day if a market be held at the place of sale or in the vicinity; the sale shall be postponed until such day, and shall then be completed at whatever price may be offered for the property.
204. Payment of purchase money and delivery of property to purchaser - (1) The price of every lot shall be paid at the time of sale or as soon as thereafter, as the officer executing the warrant may direct; and in default of such payment, the property shall again be put up and sold.
(2) When the purchase-money has been paid in full the officer executing the warrant shall deliver the property to the purchaser with a certificate describing the property and stating the price paid.
205. Application of proceeds of sales - (1) From the proceeds of the sale the officer executing the warrant shall make a deduction at the rate of one anna in the rupee, on account of the cost of sale and shall transmit the amount so deducted to the Deputy Commissioner, in order that it may be credited to the [State] Government.
(2) The said officer shall deal with the rest of the proceeds in the prescribed manner.
206. Procedure where third party claims interest in property seized - (1) If before the day fixed for the sale, a third party appears before the Deputy Commissioner and claims a right or interest in any of the movable property seized in execution, the Deputy Commissioner shall examine such party or his agent according to the law for the time being in force relating to the examination of witness, and, if he sees sufficient reason for so doing may stay the sale of such property.
(2) The Deputy Commissioner shall, after taking evidence, adjudicate upon such claim, and shall make such order thereupon as he thinks fit.
(3) If the claimant fails to establish his right to the property seized in execution the Deputy Commissioner may, by his order under sub-section (2), award to the judgementcreditor against the claimant, in addition to the costs of the proceedings such sum as the Deputy Commissioner may consider sufficient to cover any loss of interest or any other damage which the judgement-creditor has sustained by reason of the postponement of the sale.
(4) The party against whom any order is passed by the Deputy Commissioner under this Section may, at any time within one year from the date of the order, bring a suit in the Civil Court to establish his right:
Provided that if the property has been sold the suit shall not be for the recovery of the property but for damages against the judgement-creditor by whom the property was brought to sale.
207. Irregularities not to vitiate sale - No irregularity in publishing or conducting a sale of movable property under a warrant of execution issued under this Chapter shall vitiate such sale but nothing contained in this Section shall bar any person who sustains damage by reason of any such irregularity from recovering damages by suit in the Civil Court if instituted within one year from the date of the sale.
208. Sale of tenure or holding in execution of decree for arrears of rent - (1) When a decree passed by the Deputy Commissioner under this Act is for an arrear of rent due in respect of a tenure or holding, the decree-holder may apply for the sale of such tenure or holding, and the tenure or holding may thereupon be brought to sale in execution of the decree, [according to the procedure laid down in Sections 208-B to 208-D]:
Provided [firstly] that the purchaser of a tenure at any such sale shall not be entitled to annual any lease, right or tenancy referred to in clauses (a) to [(f)] of Section 14 of this Act:
[Provided secondly] also that, [Deputy Commissioner] may, by order in any case in which he may consider it desirable so to do,-
(a) prohibit the sale of any tenure or portion thereof, or
(b) stay any such sale for any period specified in the order.
[Provided thirdly] that any sale of a resumable tenure under this Section shall not affect the right of the grantor or his successor in title to resume such tenure but shall be made subject to such right:
[[Provided fourthly] that, when the holding of an aboriginal 'Raiyat or of a 'Raiyat, who is a member of a scheduled caste is sold, such land shall be sold to the highest bidder, who is an aboriginal or a member of a scheduled caste, as the case may be and shall not be sold to any person other than an aboriginal or a member of a scheduled caste unless no aboriginal or member of a scheduled caste bids for such land an amount which is not less than the amount specified in the proclamation of sale.]
[(1-A) Notwithstanding anything to the contrary contained in sub-section (1) or in any other provision of this Act, or in any other law, where a decree-holder applies for the sale of an occupancy holding, only that portion of such holding shall be sold, the proceeds of the sale of which will be sufficient to satisfy the sale or satisfy the amount due under the decree, and such portion shall not be sold at a price lower than the price specified in the proclamation of sale; and the Deputy Commissioner shall, before putting up any such portion of a holding for sale estimate the value of the whole holding and that portion of the holding the proceeds of the sale or which he considers will be sufficient to satisfy the decree and shall specify the price of such portion in the sale proclamation :]
[Provided firstly] that if the decree-holder specifies which portion of the holding should be sold, the Deputy Commissioner shall order that such portion or so much of such portion as may be seem to him necessary to satisfy the decree shall be sold and proceeds paid as provided in this Section.
[Provided secondly] that if there is any encumbrance on any portion of such holding the Deputy Commissioner shall not order such portion to be sold unless in his opinion the decree cannot be satisfied without the sale of such portion:
[Provided thirdly] that if the highest amount bid for the property included in the sale proclamation is less than the price specified for such property in the proclamation, the Deputy Commissioner may sell the property for such highest amount, if the decreeholder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest amount bid and the price specified for such property in the sale proclamation :
[Provided fourthly] that if the highest bid for such land is less than the amount specified in the proclamation of sale, the decree-holder shall be bound to bid up to that amount and purchase the portion of the holding included in the sale proclamation.
(2) When a warrant of execution has been issued under this Chapter against the person or movable property of the judgement-debtor, no application shall be received under sub-section (1) while such warrant remains in force.
[(3) Nothing in this Section shall authorise the sale of a tenure or holding or portion thereof except in execution of a decree for an arrear of rent.]
[208A. Distribution of rent of holding a portion of which is sold in execution of decree for arrears of rent. - Where a portion of an occupancy holding has been sold in execution of a decree for arrears of rent due in respect of such holding of the said holding consequent upon the sale shall be binding on the landlord. The Deputy Commissioner shall distribute the rent of the holding between the purchaser of the said portion and the tenant of such holding and such distribution of rent shall be binding on the landlord.