(1) Any decree holder requiring the provisions of clause (b) of section 63 to be applied shall apply to the Recovery Officer within whose jurisdiction defaulter resides of the property of the defaulter is situated.
(2) Every such application shall be made in the form specified by the Registrar and shall be signed by the decree holder. The decree holder may Indicate whether he wishes to proceed against the immovable property Mortgaged to the decree holder or other immovable property or to secure the Attachment of movable property.
(3) On receipt of such application the Recovery Officer shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in the office of the Registrar and prepare a demand notice in writing in duplicate in the form specified by the Registrar, setting forth the name and address of the defaulter and the amount due and forward it to a Sale Officer.
(4) Unless the decree holder has expressed a desire that proceedings should be taken in particular order as laid down in sub-rule (2) execution ordinarily be taken in the following manner :-
(i) Movable property of the defaulter shall be first proceeded against b u t t h i s s h a l l n o t p r e c lu d e t h e i m m o v a b le p r o p e r t y b e in g proceeded against simultaneously in case of necessity.
(ii) If there is no movable property, or if the sale proceeds of the movable property or propert ies attached and so ld are insufficient to meet in full t he demand of the decree-ho lder, the immovable’ p ro per t y mo r tgaged to t he decr ee- ho lder o r o t her immo va b le ’ property belonging to the defaulter may be proceeded against.
(5) In the seizure and sale of movable property the following procedure shall be observed :-
(a) The sale Officer shall, after giving previous notice to the decree ho ld e r , p r o c e e d t o t he v i l l a g e o r lo c a l i t y w he r e t he d e fa u l t e r r e s id e s o r t h e p r o p e r t y t o b e d i s t r a i n e d i s s i t u a t e d a n s e r v e a de ma nd no t ice t o t he de fau lt e r i f he i p r es e nt . I f t he a mo unt d u e t o g e t he r w i t h t h e e xp e n s e s i s n o t a t o nc e p a id , t h e S a l e O f f i c e r s ha l l ma k e t he d is t r e s s a nd s h a l l i m me d ia t e ly d e l iv e r T o t he d e fa u l t e r a l i s t o r in ve n t o r y o f t he p r o p e r t y d is t r a ine d A n d a n i n t i m a t io n o f p l a c e a n d d a y a n d h o u r a t w h i c h t h e d ist rained property will be brought to sa le if t he amount s due are no t p r ev io us ly d is c har ged . I f t he de f au lt e r is a bs e nt , t he Sa le Off ice r sha l l se r ve t he dema nd no t ice o n so me adu lt me mber o f his family, or on his author ised agent or when such service cannot be effected, shall affix a copy o f the demand not ice on some consp ic u o u s pa r t o f h is r e s id e nc e . H e s ha l l t he n p r o c e ed t o ma k e the d ist ress and sha l l f ix t he l ist o f t he proper ty at t ached on the u s u a l p l a c e o f r e s id e n c e o f t h e d e f a u l t e r , e n d o r s i n g t h e r e o n t h e p l a c e w he r e t he p r o p e r t y ma y b e lo d g e d o r k e p t a nd a n in t i ma t io n
(b) A f t e r t h e d i s t r e s s i s m a d e , t h e S a l e O f f i c e r m a y a r r a n g e f o r t h e c u s t o d y o f t h e p r o p e r t y a t t a c h e d w i t h t h e d e c r e e h o l d e r o r o t h e r w i s e . I f t h e S a l e O f f i c e r r e q u i r e s t h e d e c r e e h o l d e r t o u n d e r - t a k e t h e c u s t o d y o f t h e p r o p e r t y h e s h a l l b e b o u n d t o d o s o a n d a n y lo s s i n c u r r e d o w in g t o h i s n e g l ig e n c e s h a l l b e m a d e g o o d b y t h e d e c r e e h o l d e r . I f t h e a t t a c h e d p r o p e r t y i s l i v e s t o c k , t h e d e c r e e h o l d e r s h a l l b e r e s p o n s i b l e f o r p r o v i d i n g t h e n e c e s s a r y f o o d t h e r e o f . T h e S a l e O f f i c e r m a y , a t t h e i n s t a n c e o f t h e d e fa u l t e r o r o f a n y p e r s o n c la im in g a nd in t e r e s t e d in s u c h p r o p e r t y l e a ve i t i n t he v i l l a g e o r p la c e w he r e i t w a s a t t a c he d in t he c ha r g e o f s u c h d e f a u l t e r o r p e r s o n ; i f h e e n t e r s i n t o a b o n d i n t h e f o r m s p e c i f i e d b y t h e R e g i s t r a r w i t h o n e o r m o r e s u f f i c i e n t s u r e t i e s f o r t h e p r o d u c t i o n o f t h e p r o p e r t y w h e n c a l l e d f o r .
(c) T he d i s t r e s s s ha l l be ma d e a f t e r s u n r i s e a nd b e fo r e s u n s e t a nd no t at any other time.
(d) T h e d i s t r e s s l e v i e d s h a l l n o t b e e x c e s s i v e t h a t i s t o s a y , t h e p r o p e r t y d i s t r a i n e d s h a l l b e a s n e a r l y a s p o s s i b l e p r o p o r t i o n a t e t o t h e s u m d u e b y t h e d e f a u l t e r t o g e t h e r w i t h i n t e r e s t a n d a l l e x p e n s e s i n c i d e n t a l t o t h e d i s t r a i n t , d e t e n t i o n a n d s a l e .
(e) I f c r o p s o r u n g a t h e r e d p r o d u c t s o f t h e l a n d b e l o n g i n g t o a d e f a u l t e r a r e a t t a c he d , t he S a le O f f i c e r ma y c a u s e t he m t o be s o ld w h e n f i r f o r r e a p i n g o r g a t h e r i n g , o r a t h i s o p i n i o n m a y c a u s e t h e m t o b e r e a p e d o r g a t h e r e d in d u e r e a s o n a n d s t o r e d in p r o p e r p l a c e u n t i l s o l d . I n t h e l a t t e r c a s e t h e e x p e n s e s o f r e a p i n g o r g a t h e r i n g a n d s t o r i n g s u c h c r o p s o r p r o d u c t s s h a l l b e d e f r a y e d b y t h e o w n e r u p o n h i s r e d e e m i n g t h e p r o p e r t y o r f r o m t h e proceeds of the sale in the event of its being sold.
(f) T h e S a l e O f f i c e r s h a l l n o t w o r k t h e b u l l o c k s o r c a t t l e o r m a k e u s e o f g o o d s o r e f f e c t s d i s t r a i n e d a n d h e s h a l l p r o v i d e t h e n e c e s s a r y f o o d f o r t h e c a t t l e o r l i v e s t o c k , t h e e x p e n s e s a t t e n d in g w h i c h s h a l l b e d e f r a y e d b y t h e o w n e r u p o n h i s r e d e e m i n g t h e p r o p e r t y o r f r o m t h e p r o c e e d s o f t h e s a l e i n t h e e v e n t o f i t s being sold.
(g) I t sha l l be la w fu l fo r t he S a le o f f ic e r t o fo r c e o pe n a n y s t a b le , co w h o u s e , g r a n a r y , g o d o w n , o u t - h o u s e o r o t h e r b u i l d i n g a n d h e m a y a l s o e n t e r a n y d w e l l i n g h o u s e , t h e o u t e r - d o o r o f w h i c h m a y b e o p e n a n d m a y b r e a k u p o n t h e d o o r o f a n y r o o m i n s u c h d w e l l i n g h o u s e f o r t h e p u r p o s e o f a t t a c h i n g p r o p e r t y b e l o n g i n g t o a d e f a u l t e r a n d lo d g e d t h e r e in , p r o v id e d a lw a ys t h a t i t s h a l l n o t b e l a w f u l f o r t h e o f f i c e r t o b r e a k o p e n o r e n t e r a p a r t m e n t i n s u c h d w e l l i n g ho u s e a p p r o p r i a t e d fo r t he z e n a n a o r r e s id e n c e o f w o me n except as hereinafter provided.
(h) W h e r e t h e S a l e o f f i c e r m a y h a v e r e a s o n t o s u p p o s e t h a t t h e p r o p e r t y o f a d e fa u l t e r is lo d g e d w it h in a d w e l l i n g ho u s e t he o u t e r d o o r o f w h i c h m a y b e s h u t o r w i t h i n a n y a p a r t m e n t s a p p r o - p r i a t e d t o w o m e n , w h i c h b y c u s t o m o r u s a g e a r e c o n s i d e r e d p r i v a t e , t h e S a l e o f f i c e r s h a l l r e p r e s e n t t h e f a c t t o t h e O f f i c e r I n c h a r g e o f t h e n e a r e s t p o l i c e s t a t i o n . O n s u c h r e p r e s e n t a t i o n , t he o f f i c e r i n c h a r g e o f t h e s a id s t a t i o n s h a l l s e n d a p o l i c e o f f i c e r t o t h e s p o t i n t h e p r e s e n c e o f w h o m t h e S a l e O f f i c e r m a y f o r c e o p e n t h e o t h e r d o o r o f s u c h d w e l l i n g h o u s e i n l i k e m a n n e r a s he may break open the door o f any room within t he house except the zenana. The Sale Officer may also in the presence of a police officer, after due not ice is given for the removal o f women within a zenana and after furnishing means for their removal in a suitable manner i f t hey be wo men o f r ank, who accord ing to t he custo m o r usage ca nno t appear in pu b l ic , e nt e r t he zena na apar t me nt s fo r t he pu r po s e o f d is t r a in ing t he de f au l t e r ’ s p r o per t y, i f a ny deposited therein, but such property, if found, shall be immediately removed fro m such apar t ment aft er which they sha l l be le ft free to the former occupants.
( i) The Sa le o ff icer sha l l o n the da y previous t o and on the day o f sale cause proclamat ion of the t ime and placed of the intended sale to be made by beat of drum in t he village or localit y in which the de fau lt er res ides and in such other place o r places as t he o fficer may cons ider necessar y t o give due public it y t o t he sa le. No sale sha l l t ake place unt il a ft er t he exp irat ion o f t he per iod o f fift een days fr o m t he dat e o n whic h t he sa le no t ice has been se r ved o r a f f i x e d in t he ma n ne r p r e s c r ibe d in c la u s e ( a ) , p r o v id e d t ha t where t he property se ized is subject to speedy and natural decay, o r , wher e t he e xp e ns e o f k eep ing it i n c us t o d y is l ik e ly t o be exceeded its value, the Sale Officer may sell it at any t ime before the expir y of the said per iod of fifteen days unless the amount due is sooner paid.
( j) At the appo int ed t ime the property shall be put up in one or more lo t s , a s t he S a le O f f i c e r ma y c o n s id e r a d v i s a b l e a nd s ha l l be disposed of to the highest bidder ;
Provided that it shall be open to the Sale Officer to decline to accept the highest bid where t he pr ice o ffered appears to be undu ly low o r fo r other reasons. Where the property is sold for more than the amount due, the excess amount, after deducting the interest and the expenses of process and the other charges, shall be paid to the defaulter ;
Provided further, t hat the Recovery Officer or the Sale Officer may, in his d iscr et ion, ad jour n the sa le t o a spec if ied day and hour reco rding his reaso ns fo r such ad jour nment . Where a sa le is so ad jo ur ned fo r a lo nger per iod than seven days, a fresh proclamat ion under clause (i) shall be made.
unless the judgment debtor consents to waive it.
(K) The property shall be paid for in cash at the t ime of or as soon thereafter as the officer holding the sale shall appoint and the purchaser shall not be permitted to carry away any part of t he p r o per t y u nt i l he has p a id fo r it i n fu l l . Wher e t he ’ purchaser may fa i l in t he payment o f purchase mo ne y, t he property shall be resold.
(l) Where it is proved to t he sat is fact ion o f any c ivi l cour t o f co mpet ent ju r isd ic t io n t ha t any p r o per t y w h ic h ha s be e n dist rained under these rules has been forcibly or clandest inely removed by any person, t he court may order forthwith such property to be restored to the Sale Officer.
(m) Where prior to the day fixed for sale, the defaulter or any person act ing on his behalf or any person claiming an interest in the property attached, pays the full amount due including interest, bat ta and other costs incurred in at taching the property, the Sale Officer shall cancel the order of attachment and release the property forthwith.
(n) The movable properties mentioned as exempt from attachment in the proviso to section 60 of the Code of Civil Procedure, 1908 (5 of 1980) shall not be liable to attachment or sale under these rules.
(6) Where the movable property to be attached is the salary or allowance or wages of public officer or of servant of a local author it y or a firm or a company or any other inst itut ion, the Recovery Officer may, on receiving a report from the Sale Officer, order that the amount shall, subject to the provisions of sect ion 60 of Code of Civil Procedure, 1980 (5 of 1908) be withheld from such salary or allowances or wages either in one payment or by monthly instalments as the said Recovery Officer may direct and upon notice of the order the officer or other person whose duty it is to disburse such salary or allowances or wages shall withhold and remit to the Sale Officer the amount due under the order or the monthly instalment, as the case may be.
(7) (i) Where the property to be attached consists of the share or interest of the defaulter in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the defaulter, prohibit ing him from transferring the share or interest or charging it in any way.
(ii) Where the property to be attached is a negotiable instrument not deposited in a court , not in t he custody of a public o fficer, the at tachment sha ll be made by actual seizure and the inst rument shall be brought to t he office of the Recovery Officer order ing the attachment and be held subject to his further orders.
(iii) Where the property to be attached is in the custody of any court or public officer, the attachment shall be made by a not ice to such court or officer request ing that such property and any interest or dividend becoming payable t hereon may be he ld subject to t he further orders o f t he Recovery Officer issuing the notice :-
Provided that where such property is in the custody of a court or Recovery Officer of another district, any quest ion of t it le or priority arising between the decree ho lder and any other person not be ing the default er, claiming to be interested in such property by virtue of any assignment, attachment or otherwise shall be determined by such court or Recovery Officer.
(8) (i) Where the property to be attached is a decree either for the payment o f money or for sale in enforcement o f a mortgage or charge, the attachment shall be made by the order of the Regist rar if the decree sought to be attached was passed by the Registrar under section 56 or by an arbitrator.
(ii) Where the property to be attached is a decree other than a decree of the nature referred to in clause (i), the attachment shall be made by the issue of a not ice by the Recovery Officer to the holder of such decree, prohibit ing h i m f r o m t r a n s f e r r i n g o r c h a r g i n g t h e s a m e i n a n y w a y .
(iii) The holder of decree attached under this sub-rule shall give the Recovery Officer executing the decree such information and aid as may reasonably be required.
(iv) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Recovery Officer making an order of attachment under this sub-rule shall give notice of such order to the judgment debtor bound by the decree attached, and no payment or adjustment of the attached decree made by the judgment debtor in contravention of such of the attached decree made by the judgment debtor in contravention of such order after receipt of notice thereof, either through the said Recovery Officer or otherwise, shall be recognised so long as attachment remains in force.
(9) Where the movable property to be attached is :-
(a) a debt due to the defaulter in question ;
(b) a share in the capital of a corporation or a deposit invested therein ;
or
(c) other movable property not in the possession of the defaulter, except property deposited in or in the custody o, any civil court, the attachment shall be made by a written order signed by the’ Recovery Officer prohibiting :-
(i) in the case of debt, the creditor from recovering the debt and the debt and the debtor from making payment thereof :
(ii) in the case share or the deposit the person in whose name the share or the deposit may be standing, from transferring the share or deposit or receiving any dividend or interest there on; and
(iii) in the case of any other movable property except aforesaid the person in possession of it from giving it over to defaulter.
A copy of such order shall be sent in the case of the debt to the debtor, In the case of the share or the deposit to the proper officer of the corporation and in the case of the other movable property except as aforesaid to the person in possession of such property. As soon as the debt referred to in clause or the deposit referred to in clause (b) above matures, the Recovery Officer is not withdrawable, the said Recovery Officer shall arrange for its sale through a broker. Where the share is withdrawable, its value shall be paid to the said Recovery Officer or to the party referred to in clause (c), the person concerned shall place it in the hands of the said Recovery Office as it becomes deliverable to the defaulter.
(10) Immovable property shall not be sold in execution of a decree unless such property has been previously attached :
Provided that where the decree has been obtained on the basis of a mortgage of such property, it shall not be necessary to attach it.
(11) In-the attachment and sale without attachment of immovable property the following procedure shall be observed :-
(a) The application presented under sub-rule (3) shall contain a description of the immovable property to be proceeded against, sufficiation for its identification and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the specification of such boundaries or numbers and the to the best of the belief of the decree holder and o far as he has been able to ascertain it.
(b) The demand notice issued by the Recovery Officer under sub-rule (3) shall contain the name of the defaulter, the amount due, including the expenses, if any, the time allowed for payment and in case of non-payment the particulars of the properties to be attached, and sold or to be sold without attachment, as the case may be. After receiving the demand notice, the Sale Officer shall serve the cause to be served a copy of the demand notice upon the defaulter or upon some adult male member of his family at his usual place of residence, or upon his authorised agent or, if such personal service is not possible shall affix a copy thereof on some conspicuous part of the immovable property about to be attached and sold or sold without attachment as the case may be :
Provided that where the Recovery Officer is satisfied that a defaulter with intent to defeat or delay the execution proceedings against him is about to dispose of the whole or any part of his property, the demand notice issued by the Recovery Officer under sub-rule(3) shall not allow any time to the defaulter for payment of the amount due by him and the property of the defaulter shall be attached forthwith.
(c) If the defaulter fails to pay the amount specified in the demand notice within the time allowed, the Sale Officer shall proceed to attach and sell, or sell without attachment, as the case may be, the immovable property noted in the application for execution in the manner specified below.
(d) Where attachment is required before sale, the Sale Officer shall, is possible, cause a notice of attachment be served on the defaulter personally. Where personal service is not possible, the notice shall be affixed in some conspicuous part of the defaulter’s last known residence, if any. The fact of attachment shall also be proclaimed by the bet of drum or other customary mode at some place on or adjacent to such property and at such other place or publicity to the Recovery Officer may consider necessary to give due unless the amount due with interest and expenses be paid within the date therein mentioned, the property will be brought to sale.
A copy shall be sent to the decree holder. Where the sale officer so directs the attachment shall be notified by public proclamation in the Official Gazette.
(e)
(e) Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer and the Tehsil Office at least thirty before the date fixed for the sale and also by beat of drum in the village or locality on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale. Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected. Notice shall also be given to the decree-holder and the defaulter. The proclamation shall state the time and place of sale and specify as fully and accurately as possible-
(i) the property to be sold,
(ii) any encumbrance to which the property is liable,
(iii) the amount for the recovery of which sale is ordered, and
(iv) every other matter which the Sale Officer considers material for a purchaser to know in order to judge the nature and value of the property.
(f) When any immovable property is sold under these rules, the sale shall be subject to the prior encumbrances on the property, if any.
The decree-holder shall, when the amount for the realisation of which the sale is held exceeds Rs. 100, furnish to the Sale Officer within such time as may be fixed by him or by the Recovery Officers, an encumbrance certificate from the Registration Department for the period of not less than twelve years prior to the date of attachment of the property sought to be sold, or in cases falling under the proviso to sub-rule (10), prior to the date of the application for execution. The time for production of the encumbrance certificate may be extended at the discretion of the Sale Officer or the Recovery Officer, as the case may be. The sale shall be open to the Sale Officer to decline to accept the highest bid where the price offered appears to be unduly low or for other reasons and provided also the Recovery Officer or the Sale Officer may, in his discretion, adjourn the sale to a specified day and hour, recording his reason for such adjournment. Where a sale is so adjourned for a longer period than seven days, a fresh proclamation under clause (e) shall be made, unless the judgment debtor consents to waive it. The sale shall be held after the expiry of not less than thirty day calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer. The time and place of sale shall be fixed by the Recovery Officer and the place of sale, shall be the village or locality where the property to be sold is situated or such adjoining prominent place of public resort as may be fixed by the said Recovery Officer.
Provided that, in cases where an encumbrance certificate is not obtainable owing to the destruction of the connected records, an affidavit from the village Patwari in regard to the encumbrances known to him supported by a certificate from the Registration Department that the encumbrance certificate cannot be granted owing to the destruction of the connected records, shall be accepted in the place of an encumbrance certificate.
(g) A sum of money equal to 15 per cent of the price of the immovable property shall be deposited by the purchaser in the hands of the Sale Officer at the time of the purchase, and in default of such deposit, the property shall forthwith be resold :
Provided that, where the decree-holder is the purchaser and is entitled to Set off the purchaser money under clause (k), the Sale Officer shall dispense With requirements of this rule.
(h) The reminder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within fifteen days from the date of sale :
Provided that, the time for payment of the cost of the stamp may, for good and sufficient reasons, be extended at the discretion of the Recovery Officer up to thirty days from the date of sale :
Provided further, that in calculation the amounts to be paid under this clause, the purchaser shall have the advantage of any set-off to which he may be entitled under clause (k).
(i) In default of payment within the period mentioned in the last preceding clause, the deposit may, if the Recovery Officer thinks fir after defraying the expenses of the sale, be forfeited to the Government and the defaulting purchaser shall forfeit all claims to the property or to any part of the sum for which it may subsubsequently be sold.
(j) Every re-sale of immovable property in default of payment of the amounts mentioned in clause (h) within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.
(k) Where a decree-holder purchases the property the purchase money and the amount due on the decree shall be set off against one another and the Sale Officer shall enter up satisfaction of the decree in whole or in part accordingly.
(12) Where prior to the date fixed for a sale, the defaulter or any person act ing on his behalf or any person claiming interest in the property sought to be so ld tenders payment o f t he full amount due together with int erest traveling and other expenses incurred in bringing the property to sale including the expenses of attachment, if any the Sale Officer shall forthwith release the property after cancelling, where the property has been attached, the order of an attachment.
(13) (i) Where immovable property has been sold by the Sale Officer, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing with the Recovery Officer-
(a) for payment to the purchaser a sum equal to five per cent of the purchase money, and
(b) for payment to the decree holder, the amount of arrears specified in the proclamation of sale as that for the recovery of which the sale was ordered together with interest thereon and the expenses of amount less amount which may since the date of such proclamation have been received by the decree-holder.
(ii) If such deposit and application are made within thirty days from the date of sale, the Recovery Officer shall pass an order setting aside the sale and shall repay to the purchaser, the purchase money so far if has been deposited together with the five per cent deposited by the application.
Provided that if more persons than one have made deposit and application under this sub-rule, the application of the first depositor to the officer authorised to set aside the sale shall be accepted.
(ii) If a person applied under sub-rule (14) to set aside the sale of immovable property, he shall not be entitled to make an application under this sub-rule.
(14) (i) At any time within thirty days from the date of the sale of immovable property, the decree-holder or any person entitled to share in a rateable distribution of the assets or whose interests are effected by the sale, may apply to the Recovery Officer to set aside the sale on the ground of a material irregularity or mistake or fraud in publishing or conducting it :
Provided that no sale shall be set aside on the ground if irregularity or fraud unless the said Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud.
(ii) If the application be allowed, the said Recovery Officer shall set aside the sale and may direct a fresh one.
(iii) On the expiration of thirty days from the date of sale if no application to have the sale set aside is made or if such application has been made and rejected, the said Recovery Officer shall make order confirming the sale:
Provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reason in writing, set aside the sale.
(iv) Whenever the sale of any immovable property is not so confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser.
(v) After the confirmation of any such sale, the said Recovery Officer Shall grant a certificate of sale bearing his seal and signature to the purchaser, and such certificate shall state the property sold and the name of the purchaser and it shall be conclusive evidence of the fact of the purchase in all courts and tribunals, where it may be necessary to prove it and no proof of the seal or signature of the Recovery Officer shall be necessary unless the authority before’ w h o m i t i s p r o d u c e d s h a l l h a v e r e a s o n s t o d o u b t i t s g e n u i n e n e s s .
(15) Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person (not being the default er) claiming in good faith to be in possession of the property on his own account from obtaining possession of the immovable property purchased, any court of competent jurisdiction on application and production of the certificate of sale provided for by sub-rule (14) shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the court.
(16) It shall be lawful for the Sale Officer to sell the whole or any porport ion of immovable property of a defaulter in discharge of money due :
Provided always that, so far as may be practicable no larger section or portion of immovable property shall be sold than may be sufficient to dis- charge the amount due with interest and expenses, if any, of attachment and sale.
(17) Where an attachment has been made under these rules, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the attachment.
Explanation-For the purposes of this sub-rule, claims enforceable under an attachment include claims for the rateable distribution of assets under subrule (24).
(18) Persons employed in serving notice or in other process under these rules shall be entitled to travelling allowance at such rates as may from time to time be fixed by the Recovery Officer.
(19) Where the cost and charges incurred in connection with attachment and sale o f movable property or t he at tachment and sale or sale without attachment of immovable property under the rule, exceeds the amount of the cost deposited by the decree-holder, such excess shall be deducted from the sale proceeds of the property sold or the moneys paid by the default er as the case may be, and the balance shall be made available to the decree-holder.
(20) Every person making a payment towards any money due for the recovery of which application has been made under the rule shall be entitled to a receipt for the amount signed by the Sale Officer or other officer empowered by the Recovery Officer in that behalf, such receipt shall state the name of the person making the payment and the subject-matter in respect of which the payment is made.
(21) (a) Where any claim is preferred to or any objection is made to the attachment of, any property attached under this rule on the ground the such property is not liable to such attachment the sale officer shall investigate the claim or objection and dispose of it on merits :
Provided that no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous.
(b) Where the property to which the claim or objection relates has been advertised for sale, the Sale Officer may postpone the sale pending the investigation of the claim or objection.
(c) Where a claim or an objections is preferred, the party against whom an order is made may inst itute a suit within six months from the date of the order to establish the right which he claims to the property in dispute, but, sub ject to t he resu lt o f such su it i f any, t he o rder sha l l be co nc lus ive .
(22) (i) Any deficiency of price which may happen on a re-sale held under clause (j) of sub-rule (11) by reason of the purchaser’s default, and all expenses attending such re-sale shall be cert ified by the Sale Officer to the Recovery Officer and shall at the instance of either the decree-holder or the defaulter be recoverable from the default ing purchaser under the provisions of this rule. The costs, if any, incidental to such recovery shall also be borne by the defaulting purchaser.
(ii) Where the property may, on the second sale, sell for a higher price than at the first sale, the defaulting purchaser at the first sale have no claim to the difference or increase.
(23) Where any property has be attached in execut ion of a decree, but by reason of the decree-holder’s default the Recovery Officer is unable to proceed further with the application for execution, he shall either dismiss the application or f o r a n y s u f f i c i e n t r e a s o n a d j o u r n t h e p r o c e e d i n g s t o a f u t u r e date. Upon the dismissal o f such applicat ion, the at tachment shall cease.
(24) (a) Where the Sale Officer attaches or has attached, under these rules, any property not in the custody of any court, which is already under attachment made in execution of a decree of any court, such court shall receive and realise such property and shall determine claims thereto and any objections to the attachment thereof :
Provided that where the property is under attachment in the execution of decree f more courts than one, the court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or where there is no difference in grade between such courts, the court under whose decree the property was first attached.
(b) Where assets are held by the Sale Officer and before the receipt of such assets demand notices in pursuance of applications for execution of decree against the same defaulter have been received from more than one decree-holder and the decree-holders have not obtained satisfaction the assets after deducting the costs of realisation shall be rateably distributed by the Sale Officer among all such decree-holders in the manner provided in section 73 of the Code of Civil Procedure, 1908.
(25) Where a defaulter dies before the decree has been fully satisfied an applicat ion under sub-rule ( i) may be made against the legal representat ive of the deceased and thereupon all the provisions of this rule shall, save as otherwise provided in this sub-rule, apply as if such legal representative were, the defaulter. Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of and for the purpose o f ascer t aining such l iabi l it y, t he Recover y Off icer execut ing the decree may, of his own motion or on the applicat ion of the decree-holder, compel s u c h le g a l r e p r e s e nt a t ive t o p r o d u c e s u c h a c c o u n t s a s he t h ink s f i t .
(26) Where in connection with the proceedings on an application under section 63 of the Act, any person requires the issue of any process or objects to any process issued or objects to any order passed, he shall pay such fee as may be specified by the Registrar in this behalf.
73. Delegation of powers under section 65- The powers of the Registrar Section 65 under section 65 shall note be exercised by an officer below the rank of Assistant Registrar.
74. Mode of service of summons-(1) Every summons issued under Section 85 the Act shall be in writing, shall be authenticated by the seal, if any, of the
(2) (XIX) officer by whom it is issued and shall be signed by such officer or by any person authorised by him in writing in that behalf. It shall require the person summoned to appear before the said officer at a stated time and place and shall specify whether his attendance is required for the purpose of giving evidence, or to produce a document, or for both purposes; and any particular document the production of which is required, shall be described in the summons with reasonable accuracy.
(2) Any person may be summoned to produce a document without being summoned to give evidence, and any person summoned merely to produce document shall be deemed to have complied with the summons if he causes such document to be produced, instead of attending personally to produce the same.
(3) The service of summon under the Act on any person may be effected in any of the following ways :-
(a) by giving or tendering it to such person ; or
(b) if such person is not found, by leaving it at his last known place of abode or business or by giving or tendering it to some adult member of his family ; or
(c) if the address of such person is known to the Registrar or other authorised person, by sending it to him by registered post ; or
(d) if none of the means aforesaid is available by affixing it at some conspicuous part of his last known place of abode or business.
(4) Where the serving officer delivers or tenders copy of the summons to the defendant personally or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.
(5) The serving officer shall in all cases in which the summons has been served under sub-rule (4) endorse or annex, or cause to be endorsed or annexed, on or to the original summons a return stating the time and the manner in which the summons was served and the name and address of the person, is any, identifying the person served and witnessing the delivery or tender of the summons.
(6) Where the party to be summoned is a public officer or is the servant of a company or local authority or any institution the officer issuing the summons may, if it appears that the summons may be most conveniently so served, send it by registered post prepaid for acknowledgement for service on the party to be summoned to the head of the office in which he is employed together with the copy to be served endorsed on the original summons.
CHAPTER X MISCELLANEOUS
75. Appeals-For the purposes of section 68, no appeal shall be enter- Section 85 tained unless it is accompanied by a copy of the order appealed against. (2) (xxvii)
76. Returns to be submitted by co-operative societies-The Registrar Section 85 may lay down the returns to be submitted by a society and provide for the (2) (xiv) persons by whom and the form in which such returns will be submitted. If a society fails to comply with the directive within a reasonable time, the Registrar may have the returns completed at the expense of the Society.
77. Inspection of documents-Any member of the public shall be permitted, on payment of a fee of one rupee for each occasion of inspecting to Section 85 inspect, for any lawfyul purpose, any public document (exclusive of public (2) (xxxiv) document privileged under sections 123, 124, 128 and 131 of the Indian Evidence Act, 1972) filed in the office of the Registrar, Co-operative Societies, and in particular the following documents, namely :-
(1) The registration register.
(2) The registration certificate of a society.
(3) The registered bye-laws of a society and amendments effected in such bye-laws.
(4) An order cancelling the registration of a society.
(5) An order directing the liquidation of a registered society.
(6) The annual accounts of the society.
(7) Any decision of the Registrar or award of an arbitrator.
Section 85 78. Fees for copies of public documents-The fees prescribed for certi-
(2) (xxxiv) fied copies of any public documents, which any person has under the preceding rule a right of inspection, are as follow :- Rs.
(1) For registration certificate 3.00
(2) In the case of other documents, a sum calculated at the following rates :-
(i) First two hundred words or under 0.75
(ii) Every additional hundred words or fraction thereof 0.37 Section 85 (1) 79. Forms of order and award-The award of the arbitrator shall be in the form given in Appendix F and the order of liquidator under clause (e) of sub-section (2) of section 59 in the form in Appendix G.
Section 85 80. Special rule-(1) Notwithstanding any thing contained in these
(1) and 85 (2) rules, the procedure laid down in this rule shall apply to a society in which
(ii) and either shares have been subscribed by Government or liability by way of guarantee for borrowing exceeding fifty per cent of the working capital of the society has been undertaken by the Government :
Provided that it shall not be incumbent upon such a society to follow the procedure laid down in clauses (i) and (ii) if its working capital does not exceed Rs. 1,00,000 or it does not have another co-operative society s its member :-
(i) At least fifteen days clear notice, specifying the date, place, time and agenda for a meeting of a general body/committee and at least seven days’ clear notice for a meeting of any smaller body set up by either of them, whether convened by the Registrar, the President or otherwise, shall be given to all the members of the general body/committee or smaller body, as the case may be.
The Registrar may of his own motion or on a reference made to him, declare the proceedings of such meeting as invalid, if he is satisfied that the meeting was held without proper notice or without all the members having received the notice for the meeting or if the meeting was not conducted at the appropriate place and time.
(ii) No mater shall be considered either in a meeting of a general body/committee or in meeting of any smaller body set up by either of them unless that matter is specially included in the agenda which is circulated to all members at least fifteen clear or seven days in advance, respectively.
(iii) Should a difference of opinion in respect of any matter arise between a nominated member of the committee and other members thereof the opinion of the nominated member shall be recorded in the minutes of the proceedings of the meeting in the words of from the nominated member. As required by sub-section (4) reference to the Government and if no reference is made within seven days of the date of the meeting, the Registrar may, on receipt of the report from a nominated member, make a reference to the Government for getting its decision.
(2) In a society in which shares have been subscribed by the Government and of which another Co-operative Society is a member, the Registrar may, after such inquiry as he may deem fit and after giving the person concerned a reasonable opportunity of showing cause, remove any member of the committee who has been guilty of any act of omission or commission resulting in financial loss to the society.
(81) Repeal :-The Punjab Co-operative Societies Rules, 1956, are hereby repealed :
Provided that any act ion t aken, o rder is sued, bye- law made under t he provis ions o f the rules hereby repealed shall, in so far as it is not inconsistent wit h t he pro vis io ns o f t hese ru les , be deemed to have been t aken, is sued o r made under the provisions of these rules.