(1) Immoveable 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.
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(2) In the attachment and sale or sale without attachment of immoveable property, the following rules shall be observed,-
(a) The Sale Officer shall serve or cause to be served a copy of the demand notice issued under sub-rule (3) of Rule 34 upon the judgment-debtor or, if he is not available, upon some adult male member of his family or upon his authorized agent, or, if such service is not possible, shall affix a copy thereof on some conspicuous part of the immoveable property about to be attached and sold or sold without attachment, as the case may be;
(b) If the judgment-debtor fails to pay the amount specified in the demand notice within the time allowed, or, if no time is allowed, immediately, the Sale Officer shall proceed to attach and sell, or sell without attachment, as the case may be, the immoveable property specified in the demand notice;
(c) Where attachment is required before sale, the sale officer shall cause a notice of attachment to be served on the judgment-debtor personally or on an adult male member of his family, or on his authorized agent. Where such service is not possible, the notice shall be affixed in some conspicuous part of the judgment-debtor’s last known place of residence. The fact of attachment shall also be proclaimed by beat of drum or other customary mode at some place on or adjacent to the property attached, and at such other place or places as the Recovery Officer may consider necessary to give due publicity to the sale. The attachment notice shall set forth that, unless the amount due with interest and expenses be paid within the date therein mentioned, the property will be brought to sale. A copy of such notice shall be sent to the decreeholder. Where the Recovery Officer so directs the attachment shall also be notified in the Official Gazette;
(d) Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer and in the Taluk Office at least thirty days before the date fixed for the sale. It shall also be published by beat of drum in the village on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale. Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected. Notice shall also be given to the decree-holder and the judgment-debtor. The proclamation shall state the time and place of sale and specify as fairly and accurately as possible,-
(i) the property to be sold;
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(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.
(e) When any immoveable 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 realization 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 Officer, an encumbrance certificate from the Registration Department for the period of not less than twelve years prior to the date of attachment of the property sought to be sold, or in cases falling under the proviso to sub-rule (1) prior to the date of the application for execution. The time for the production of the encumbrance certificate may be extended at the discretion of the Sale Officer or the Recovery Officer as the case may be:
Provided that in case where an encumbrance certificate is not obtainable owing to the destruction of the connected records, an affidavit from the village patwari (shanbhogue) 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
(f) The sale shall be by public auction to the highest bidder, provided that it shall be open to the Sale Officer to decline to accept the highest bid where the price offered appears to be unduly low or for other reasons and provided also that the Recovery Officer or the Sale Officer may, in his discretion, adjourn the sale to a specified day and hour, recording his reasons for such adjournment. Where a sale is so adjourned to a longer period than 7 days, a fresh proclamation under clause (d) shall be made, unless the judgment-debtor consents in writing to waive it;
(g) The sale shall be after the expiry of not less than 30 days calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer.
The time and place of sale shall be fixed by the Recovery Officer and the place of sale 89 shall be the village where the property to be sold is situated or such adjoining prominent place of public resort as may be fixed by the said Recovery Officer;
(h) A sum of money equal to 15 per cent of the price for which the immoveable property is purchased in the auction shall be paid by purchaser to the Sale Officer at the time of purchase, and in default of such deposit, the property shall forthwith be resold:
Provided that, where the decree-holder is the purchaser and is entitled to set off the purchase money under clause (1) the Sale Officer shall dispense with the requirements of this rule:
[1Provided further that where the Government is the purchaser the purchase money shall be remitted to the Decree-holder immediately after the expiry of ninety days from the date of the sale.]
1. Second proviso inserted by Notification No. GSR 329, dated 27-10-1977, w.e.f.3-11-
1977.
(i) The remainder of the purchase money and the amount required for the general stamp for the sale certificate shall be paid within 45 days from the date of sale:
2[x x x x x.]
Provided further that in calculating the amounts to be paid under this clause, the purchaser shall have the advantage of any set off to which he may be entitled under clause
(1);
(j) In default of payment of the remainder of the purchase money, within the period mentioned in clause (i), the deposit, may, if the Recovery Officer thinks fit, 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 subsequently be sold;
(k) Every resale of immoveable property in default of payment of the amounts mentioned in clause (i) within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period therein before prescribed for the sale.
(l) 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.
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(3) Where prior to the sale, the judgment-debtor, or any person acting on his behalf or any person claiming an interest in the property sought to be sold tenders payment of the full amount due together with interest, batta and other expenses incurred in bringing the property to sale, including the expenses of attachment, if any, the Sale Officer shall forthwith release the property after cancelling where the property has been attached, the order of attachment.
(4) (a) Where immoveable property has been sold, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing with the Recovery Officer,-
(i) For payment to the purchaser a sum equal to 5 per cent of the purchase money; and
(ii) for payment to the decree-holder the amount of arrears specified in the proclamation of scale as that for the recovery
1. Substituted words and figures “within 15 days” by Notification No. CMW 70 CLM 2001, dated 20-6-2003, w.e.f.4-7-2003.
2. Proviso omitted by Notification No. CMW 70 CLM 2001, dated 20-6-2003, w.e.f.4-7-203 of which the sale was ordered together with interest thereon and the expenses of attachment, if any, and sale and other costs due in respect of such amount, less amount which may since the date of such proclamation have been received by the decree-holder.
(b)If such deposit and application are made within 30 days from the date of sale, the Recovery Officer shall pass an order setting aside the sale and shall repay to the purchaser the purchase money so far as it has been deposited together with the 5 per cent deposited by the applicant:
Provided that, if more persons than one have made deposit and application under this sub-rule, the application of the first depositor to the Recovery Officer shall be accepted:
1[Provided further that where the purchaser is the Government, the sale shall be set aside if the person owning the property or any person interested, therein,-
(i) makes the application within sixty days from the date of sale along with,-
(a) a sum equal to five per cent of the purchase money for payment to Government; and
(b) fifty per cent of tile amount due under the decree for payment to the decree holder; and 91
(ii) pay the balance within thirty days thereafter i.e., within ninety days from the date of sale.]
(c) If a person applies under sub-rule (5) to set aside the sale of an immoveable property, he shall not be entitled to make an application under this sub-rule.
(5)(a) At any time within 30 days from the date of the sale of an immoveable property, the decree-holder or any person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Recovery Officer to set aside tile sale on the ground of a material irregularity or mistake or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregu1arity or mistake or fraud unless the said Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistake or fraud:
1. Second proviso inserted by GSR 329, dated 27-10-1977, w.e.f.3-11-1977.
1[Provided further where the purchaser is Government the sale will be confirmed,-
(a) after the expiration of sixty days where no application to have sale set aside is made under sub-rule (4); or
(b) after the expiration of ninety days where an application to set aside under sub-rule (4) is made but the balance of the amount due under the decree is not deposited within ninety days from the date of sale.]
(c) If the application be allowed, the said Recovery Officer shall set aside the sale and may direct a fresh one.
(6)(a) On the expiration of thirty days from the date of sale, if no application to have the sale set aside, either under sub-rule (4) or sub-rule (5) is made or if such application has been made and is rejected, the said Recovery Officer shall make an 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 reasons in writing, set aside the sale; (b) Whenever the sale of any immoveable property is not confirmed or is set aside, the deposit or the purchase money, as the case may be, shall be returned to the purchaser.
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(7) On the confirmation of a sale under this rule, the Recovery Officer shall grant a certificate of sale bearing his seal and signature to the purchaser, and such certificate shall state the property sold and the name of the purchaser, and it shall be conclusive evidence of the fact of the sale to such purchaser.
2[(8) The land purchased by Government in satisfaction of any decree prior to commencement of the Karnataka Co-operative Societies (V Amendment) Rules, 1977 shall be reconveyed to the person who own the property or held an interest therein by virtue of a title acquired before the sale if he makes application for such reconveyance and deposits with the recovery officer within a period of ninety days from the date of coming into force of these rules.-
(a) five per cent of the purchase money as solatium;
(b) purchase money at the interest of eight and a half per cent per annum from the date of sale up to the date of deposit.]
1. Second proviso inserted by GSR 329, dated 27-10-1977, w.e.f.3-11-1977.
2. Sub-rule (8) inserted by GSR 329, dated 27-10-1977, w.e.f.3-11-1977.
1[38-A. Transfer of property which cannot be sold.- (1) When in execution of an order sought to be executed under Section 101, any property cannot be sold for want of buyers, if such property is in the possession of the defaulter or some person in this behalf, or some person claiming it under a title, created by the defaulter subsequent to the issue of the certificate by the Registrar or any person authorized by him under clause (a) or (b) of the said section the officer conducting the execution shall as soon as practicable report the fact to the Court or the Deputy Commissioner or the Registrar, as the case may be, and the Society applying for the execution of the said order.
(2) On receipt of a report under sub-rule (1), the society may, within SIX months from the date of the receipt of the report or within such further period as may for sufficient reasons be allowed in any particular case by the Court or the Deputy Commissioner or the Registrar, submit an application in writing to the Court, the Deputy Commissioner or the Registrar, as the case may be, stating whether or not it agrees to take over such property.
(3) On receipt of an application under sub-rule (2), notices shall be issued to the defaulter and to all persons known to be interested in the property, including those whose names appear in the Record of Rights as persons holding any interest in the property, about the intended transfer.
(4) On receipt of such a notice, the defaulter, or any person owing such property or holding an interest therein by virtue of a title acquired before the date of the issue of a certificate 93 under Section 101, may within one month from the date of receipt of such notice, deposit with the Court or the Deputy Commissioner, or the Registrar, for payment to the society a sum equal to the amount due under the order sought to be executed together with interest thereon and such additional sum for payment of costs and other incidental expenses as may be determined in this behalf by the Court or the Deputy Commissioner or the Registrar, as the case may be.
(5) On failure of the defaulter, or any person interested, or any person holding any interest in the property, to deposit the amount under sub-rule (4), the Court or the Deputy Commissioner or the Registrar, as the case may be shall direct the property to be transferred to the Society on the conditions stated in the certificate in Form in.
(6) The certificate granted under sub-rule (5) shall state whether the property is transferred to the Society in full or partial satisfaction of the amount due to it from the defaulter.
(7) If the property is transferred to the Society in partial satisfaction of the amount due to it from the defaulter, the Court or the Deputy Commissioner or the Registrar, as the case may be, shall on the production by the society of a
1. Rule 38-A inserted by GSR 563, dated 23-6-1965, w.e.f.26-6-1965.
certificate signed by the Registrar recover the balance due to the society in the manner laid down in Section 101.
(8) The transfer of the property under sub-rule (5) shall be effected as follows.-
(a) Where the property is growing or standing crop, it may be delivered to the society before it is cut and gathered and the Society shall be entitled to enter the land, and to do all that is necessary for the purpose of tending and cutting and gathering;
(b) Where the property is in the possession of the defaulter or of some person on his behalf or some person claiming under a title created by the defaulter subsequent to the issue of a certificate under Section 101, the Court or the Deputy Commissioner or the Registrar, as the case may be, shall, order delivery to be made by putting the society or any person whom the Society may appoint to receive delivery on its behalf, in actual possession of the property and if need be,. by removing any person who illegally refuses to vacate the same;
(c) Where the property is in the possession of a tenant or other person entitled to hold the same by a title acquired before the date of issue of a certificate under Section 101, the Court or the Deputy Commissioner or the Registrar as the case may be, shall order delivery to be made by affixing a copy of the certificate of transfer of the property to the society in some conspicuous place on the property and proclaiming to such person 94 by beat of drum or other customary mode at some convenient place, that the interest of the defaulter has been transferred to the Society.
(9) The Society shall be required to pay expenses incidental to sale.
(10) Where the land is transferred to the Society under clause (a) of sub-rule (8) before a growing or standing crop is cut and gathered, the Society shall be liable to pay the current year’s land revenue on the land.
1[(11) The Society shall forthwith report any transfer of property under clause (b) or (c) of sub-rule (8).-
(i) to the City Municipal Corporation, Municipal Council or Town Panchayat in case the property is situated in a larger urban area, smaller urban area or transitional area respectively.
(ii) to the Village Accountant, in case the property is situated in other areas,
1. Sub-rule (11) substituted by Notification No. CMW 34 CLM 2004, dated 17-3-2004, w.e.f.27-3-2004.
for information and entry in the record of rights by the concerned authorities.]
(12) The Society to which the property is transferred under sub-rule (5), shall maintain for each such defaulter a separate account showing all the expenses incurred including payment to outside encumbrances, land revenue and other dues on the property and all the income derived from it.
(13) The Society to which the property is transferred under sub-rule (5), shall use its best endeavour to sell the property as soon as practicable to the best advantages of the Society as well as that of the defaulter, the first option being always given to defaulter who originally owned the property. The sale shall be subject to the confirmation by the Registrar. The proceeds of the sale shall be applied to defraying the expenses of the sale and other expenses incurred by the Society and referred to in sub-rules (9) and (12) and to the payment of the arrears due by the defaulter under the order in execution, and the surplus (if any), shall then be paid to the defaulter.
(14) Until the property is sold, the society to which the property is transferred under sub-rule
(5) shall use its best endeavours to lease it or to make any other use that can be made of it so as to derive the largest possible income from the property.
(15) When the society to which property is transferred under sub-rule (5) has realized all its dues, under the order in execution of which the property was transferred, from the proceeds of management of the property, the property, if unsold, shall be restored to the defaulter.]
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