(1) 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, i t shall not be necessary to attach i t .
(2) In the attachment and sale or sale without at tachment of immovable property, the following rules shall be observed—
(a) The application presented under sub -rule (2) of Rule 62 shall contain a description of the immovable property to be proceeded against , sufficient for i ts identification and in case such property can be identified by boundaries or numbers in a record of sett lement or survey, the specification of such boundaries or numbers and the specification of the judgment -debtor‟s share or interest in such property to the best of the belief of the decree - holder and so far as he has been able to ascer tain i t .
(b) The demand notice issued by the Recovery Officer under sub -rule
(3) of Rule 62 shall contain the name of the judgment -debtor , the amount due, including the expenses, if any, and the bhatta to be paid to the person who shall serve the demand notice the t ime 67 allowed for payment and in case of non -payment, the particulars of the properties to be attached and sold or to be sold without at tachment, as the case may be. After receiving the demand notice, the Sale Officer shall serve or cause to be served a copy of the demand notice upon the judgment —debtor 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 proper ty about to be attached and sold or sold without at tachment, as the case may be Provided that where the Recovery Officer is satisfied that a judgment -debtor with intent to defeat or delay the execution proceedings aga inst 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) of Rule 62 shall not al low any t ime to the judgment -debtor for payment of the amount due by him and the property of the judgment - debtor shall be attached forthwith.
(c) If the judgment -debtor fails to pay the amount specified in the demand notice within the t ime allowed, the Sale Officer shall proceed to attach and sell , or sell without attachment, as the case may be, the immovable property specified in the demand notice for execution in the following manner.
(d) Where the attachment is required before sale, the Sale Officer shall , i f possible, cause a notice of at tachment to be served on the judgment -debtor personally. Where personal service is not possible, the notice shall be affixed in some conspicuous part of the judgment -debtor‟s last known residence, if any. The fact of at tachment shall also be proclaimed by beat of drum or other customary mode of announcement at some place on or adjacent to such property 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 proper ty will be brought to sale. A copy shall be sent to the decree-holder. Where the Sale Officer so directs the attachment shall also be notified by public proclamation in a local newspaper, if any.
(e) Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer, office of the Co -operative Central Bank and in the tahsil office at least thirty days before the date fixed for the sale. It shall also be published by beat of dr um in the vil lage. Such proclamation shall , where attachment is required before sale, be made after the attachment has been affected.
68 Notice shall also be given to the decree -holder and the judgment - debtor. The proclamation shall state the t ime and place o f sale and specify as fairly and accurately as possible —.
( i) the property to be sold, ( i i) any encumbrance t o which the property is l iable, ( i i i) the amount for the recovery of which the sale is ordered, and
(iv) every other matter which the Sale Off icer consider material for a purchaser to know in order to judge the nature and value of the property.
(f)(i) Where 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 where the amount for the realisation of which the sale is held exceeds 1[Rs. 5,0001 furnish to the Sale Officer within such t imes as may be fixed by him or by the Recovery Officer, an encumbrance cert if icate from the Registration Department for the period of not less than 1[seven] years prior to the date of at tachment of the property sought to be sold, or in cases fall ing under the proviso to the sub -rule (1) prior to the date of the application for execution. The t ime for production of the encumbra nce cert if icate may be extended at the discretion of the Sale Officer of the Recovery Officer, as the case may be. The sale shall be by public auct ion to the highest bidder:
Provided that i t 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:
Provided further that the Recovery Officer or the Sale Officer may, in his discretion, adjourn the sale to a specified day and hour, recordin g his reasons 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 i t .
( i i)The sale shall be held after the expiry of not less than thirty days calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer. The t ime and place of sale shall be fixed by the Recovery Off icer and the place of sale shall be the vil lage where the property to be sold is si tuated or such adjoining prominent place of public resort as may be fixed by the said Recovery Officer :
Provided that in cases where an encumbrance cert if icate is not obtainable owing to the destruction of the connected records, an affidavit from vil lage Patwari in regard to the encumbrances known to him supported by a cert if icate from the Registration Department that the encumbrance cert if icate 69 cannot be granted owing to the destruction of the connected records, shall be accepted in the place of an encumbrance cer t if ica te.
(g) A sum of money equal to 25 percent of the price for which the immovable property is purchased in auction shall be paid by the purchaser to the Sale Officer at the t ime of the purchase, and in default of such deposit , the property shal l forthwith b e resold
Provided that where the decree -holder is the purchaser and is enti t led to set off the purchase money under clause (k) the Sale Officer shall dispense with the requirements of this clause.
(h) The remainder of the purchase money and the amount req uired for the general stamp for the sale cert ificate shall be paid within fif teen days from the date of sale Provided that the t ime for payment of the cost of the stamp may for good and sufficient reasons, be extended at the discretion of the Recovery Offi cer upto thirty days from the date of sale 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 enti t led under clause (k).
( i) In default of payment of the purchase money within the period mentioned in clause (h), the deposit may, i f the Recovery Officer thinks fi t , after defraying the expenses of the sale, be forfeited to the State Government and the default ing purchaser shall forfeit all claims to the property or to any part of the sum for which i t may subsequently be sold.
( j ) Every resale of immovable property in default of payment of the amount mentioned in clause (h) within the period allowed for such payment, shall be made after the issue of a fresh pr oclamation 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 u p satisfaction of the decree in whole or in part accordingly.
(3) Where prior to the date fixed for 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 f ull amount due together with interest , bhatta and other expenses incurred in bringing the property to sale, including the expenses of at tachment, if any, the Sale Officer shall forthwith release the property after cancell ing, where the property has been at tached, the order of at tachment.
70
(4)(i) Where immovable property has been sold by the Sale Officer, any person either owning such property or holding an interest therein virtue of a t i t le acquired before such sale may apply to have the sale set aside on his deposit ing with the Recovery Officer—
(a) for payment to the purchaser a sum equal to five percent 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 at tachment, 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.
( i i) If such deposit and application are made within thirty days from the date of sale, the Recovery Officer shall pass an order sett ing aside the sale and shall repay to the purchaser, the purchase money so far as i t has been deposited with the five percent deposited by the applicant Provided that , if more persons than one have made deposit and appl ication under this sub-rule, the application of the first depositor to the Recovery Officer, shall be accepted.
( i i i) If a person applies under sub -rule (5) to set aside the sale of immovable property, he shall not be enti t led to make an application under this sub -rule.
(5)(i) At any t ime within thirty days from the date of the sale of immovable property, the decree -holder or any person enti t led 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 the sale on the ground of a material irregulari ty or mistake or fraud in publishing or conducting i t :
Provided that no sale shall be set aside on the ground of irregulari ty or fraud unless the Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregulari ty, mistake or fraud.
( i i) If the application be allowed, the Recovery Officer shall set aside the sale and may direct a fresh one.
(6)(i) 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 applicat ion has been made and rejected, the Recovery Officer shall make an order confirming the sale:
Provided that , if he shall have reasons to think that the sale ought to the set aside notwithstanding that no such application has been made or on 71 grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writ ing, set aside the sale.
( i i)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.
( i i i ) After the confirmation of any such sale, the Recovery Off icer shall—
(a) grant a cert if icate of sale bearing his seal and signature to the purchaser and such cert if icate shall state the property sold and the name of the purchaser and i t shall be conclus ive evidence of the fact of the purchase in all Courts and Tribunals, where i t may be necessary to prove i t and no proof of the seal or signature of the Recovery Officer shall be necessary unless the authority before whom it is produced shall have reason t o doubt i ts genuineness .
(b) Serve notice on the person or persons in possession of the immovable property mentioned in the cert if icate of sale, to deliver possession there of to the purchaser within 15 days from the date of receipt of notice by him.
(iv) An order made under this sub -rule shall be final , and shall not be l iable to be questioned in any sui t or other legal proceedings.
(7) On failure of the person in possession of the immovable property to deliver possession thereof to the purchaser within the period specified in the notice under clause (ii i) of sub-rule (6) the Recovery Officer shall use such force as may b necessary to dispossess the person in possession of the immovable property and deli ver the same to the purchaser.
(8) It shall be lawful for the Sale Officer to sell the whole or any portion of the immovable property of a judgment -debtor in discharge of money due:
Provided always that so far as may he pract icable, no larger section or portion of immovable property shall be sold than may b e sufficient to discharge the amount due with interest and expenses of at tachment, if any, and sale.
66-A. Attachment and lease of immovable property. —(1) Immovable property shall not he transferred by lease for a specified period 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, i t shall not be necessary to attach i t .
(2) In the attachment and transfer or transfer without at tachment of immovable property, the following rules shall be observed : — 72
(a) The application presented under sub -rule (2) of Rule 62 shall contain description of the immovable property to be proceeded against sufficient for i ts identification and in case such proper ty can be identified by boundaries or numbers in a record of sett lement of survey, the specification of such boundaries or numbers and the specifications of the judgment -debtor‟s share or interest is such property to the best of the belief of the decree - holder and so far as he has been able to ascer tain i t .
(b) The demand notice issued by the Recovery Of ficer under sub-rule
(3) of Rule 62 shall contain the name of the judgment -debtor, the amount due, including the expenses, if any, and the Bhatta to be paid to the person who shall serve the demand notice, the t ime allowed for payment and in case of non -payment, the particulars of the properties to be attached and transferred or to be transferred without at tachment, as the case may be. After receiving the demand notice, the Sale Officer shall serve or cause to be served a copy of the demand notice upon the judgment - debtor 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 transferred or transferred without at tachment, as the case may be :
Provided that where the Recovery Officer is satisfied that a judgment-debtor 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) of Rule 62 shall not al low any t ime to the judgment -debtor for payment of the amount due by him and the property of the judgment -debtor shall be attached forthwith.
(c) If the judgment -debtor fails to pay the amount specified in the demand notice within the t ime allowed, the Sale Officer shall proceed to attach and transfer or transfer without at tachment, as the case may be, the immovable property specified in the demand notice for execution in the following manner.
(d) Where the attachment is required before transfer by lease, the Sale Officer shall , i f possible, cause a notice of at tachment to be served on the judgment -debtor personally, where personal service is not possible, the notice shall be affixed in some conspicuous part of the judgment -debtors last known residence, if any. The fact of at tachment shall also be proclaimed by beat of drum or other customary mode of announcement at some place on or adjacent to such property and at such other place or places as the Recovery Officer may consider necessary to give due publicity to 73 the transfer by lease. 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 transfer by lease. A copy shall be sent to the decree -holder. Where the Sale Officer so directs the attachment shall also be notified by public proclamation in a local news -paper, if any.
(e) Proclamation of transfer by lease shall be published by affixing a notice in the office of the Recovery Officer, Office of the Co - operative Central Bank and in the Tahsil Office at least thirtydays before the date fixed for the transfer by lease. It shall also be published by beat of drum in the vil lage. Such proclamation shall , where attachment is required before transfer, be made after the attachment has been affected. Notice shall also be given to the decree-holder and the judgment -debtor. The proclamation shall state the t ime and place of transfer by lease and specify as fairly and accurately as possible :—
(i) the property to be t ransferred by leas e;
( i i) any encumbrance t o which the property is l iable;
( i i i) the amount for the recovery of which the transfer is ordered;
and ( iv) every other matter, e .g., the period of lease, the terms and conditions of lease, penalty of Rs. 10/ - per day per acre to be paid by the lessee in case he detains the land beyond the period for which the lease is granted, etc. , which the Sale Officer considers material for a lease -holder to know in order to judge the nature and value of the property.
Explanation .—(i) The period of lease in no case shall extend beyond a period of 3 years. By virtue of this lease, the lessee shall not acquire any new tenancy rights/right of permanent lease.
( i i) At the end of the period specified in the proclamation, the land will revert to the judgment-debtor for which the Recovery Officer will issue a cert if icate in prescribed form. The retention of the land beyond the period will result in penalty specified above.
( i i i)The terms and conditions for the said lease may include that the lessee pays entire dues of the judgment -debtor to the satisfaction of the decree-holder in one instalment, the exact period of lease, prohibit ion of any permanent improvement on the land involved in the lease, no right to any compensation or return on the investment made on improvement of land, e tc. These terms may be decided by the Regist rar under Section 84 of the Madhya Pradesh Co-operative Societies (Amendment) Act, 1970.
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(iv) This explanation should form part of the proclamation.
(f) ( i) Where any immovable property is transferred under these rules, the transfer shall be subject to the prior encumbrances on the property, if any. The decree -holder shall , where the amount for the realisation of which the transfer is held exceeds Rs. 5,000/ - furnish to the Sale Off icer within such t ime, as may be fixed by him or by the Recovery Officer, an encumbrance cert if icate from the Registration Department for the period of not less than one year prior to the date of at tachment of the property sought to be transferred or in ca ses fall ing under the proviso to sub-rule (1) prior to the date of the application for execution.
The t ime for production of the encumbrance cert if icate may be extended at the discretion of the Sale Officer or the Recovery Officer, as the case may be. The transfer shall be by public auction to the highest bidder Provided that i t 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
Provided further that the Recovery Offic er or the Sale Officer may, in his discretion, adjourn the auction for transfer by lease to a specified day and hour, recording his reasons for such adjournment. Where auction for transfer is so adjourned for a longer period than seven days, a fresh procla mation under clause (e) shall be made, unless the judgment -debtor consents to waive i t Provided also that for want of bidders, or inadequate amount of bid, or for other reasons the decree - holder may abandon procedure of recovery by transfer by lease and apply afresh to the Recovery Officer under sub -rule (2) of Rule 62, for recovery under Rule 66 of these rules. By virtue of the new application under Rule 62, the previous application under Rule 62, for auction under Rule 66 -A shall be deemed to have been cancelled.
( i i) The auction for transfer by lease shal l be held after the expiry of not less than thirty days calculated from the date on which notice of the proclamation was affixed in the office of the Recovery Officer. The t ime and place of auction fo r transfer by lease shall be fixed by the Recovery Officer and the place of auction shall be the vil lage where the property to be transferred is si tuated or such adjoining prominent place of public resort as may be fixed by the said Recovery Officer
Provided that in cases where an encumbrance cert if icate is not obtainable owing to the destruction of the connected records, an affidavit from vil lage Patwari in regard to the encumbrances known to him supported by a cert if icate from the Registration 75 Department that the encumbrance cert if icate cannot be granted owing to the destruction of the connected records, shall he accepted in the place of an encumbrance cer t if icate.
(g) A sum of money equal to 33 per cent of the price for which the immovable property i s leased out in auction shall be paid by the lessee to the Sale Officer at the t ime of the lease and in default of such deposit , the property shall forthwith be auctioned for leasing out against Provided that where the decree-holder is the lessee and is en ti t led to set off the lease money under clause (k) the Sale Officer shall dispense with the requirements of this clause.
(h) The remainder of the lease money and the amount required for the general stamp for the cert if icate of lease shall be paid within forty five days from the date of lease: Provided that in calculating the amounts to be paid under this clause, the lessee, shall have the advantage of any set off to which he may be enti t led under clause (k).
( i) In default of payment of the lease money within the period mentioned in clause (h), the deposit may, if the Recovery Officer thinks fi t after defraying the expenses of the lease be forfeited to the State Government and the default ing lessee shall forfeit al l claims to the property or to an y part of the sum for which i t may subsequently be leased out.
( j ) Every release of immovable property in default , of payment of the amount 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 transfer by lease.
(k) Where a decree-holder is the lessee of the property the lease money and the amount due on the decree shall be set -off against one another and the Sale Officer shall enter up to satisfaction of the decree in whole or in part accordingly.
(3) Where prior to the date fixed for transfer by lease, the judgment - debtor or any person acting on his behalf or any person claiming an interest in the property sought to be transferred tenders payment of the ful l amount due together with interest , Bhatta and other expenses incurred in bringing the property to lease including the expenses of at tachment, if any, the Sale Officer shall forthwith release the property after cancell ing, where the property has been attached the order of at tachment.
(4)(i) Where immovable property has been transferred by lease by Sale Officer, any person either owning such property or holding an interest 76 there in by virtue of a t i t le acquired before such transfer may apply to have the transfer set aside on his deposit ing with the Recovery Officer : —
(a) for payment to the lessee a sum equal to five per cent of the lease money, and
(b) for payment to the decree -holder, the amount of arrears specified in the proclamation of lease as that for the recovery of which the transfer by lease was ordered together with interest thereon and the expenses of at tachment, if any, and transfer and other cost due in respect of such amount, less amount which may since the date of such proclamation, have been received by the decree -holder.
( i i) If such deposit and application are made within thirty days from the date of auction for lease, the Recovery Officer, shall pass an order sett ing aside the transfer and shal l repay to the lessee the lease money so far as i t has been deposited with the five 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.
( i i i) If a person applies under sub -rule (5) to set aside the transfer of immovable property, he shall not be enti t led to make an application under this sub -rule.
(5)(i) At any t ime within thirty days from the da te of the auction for lease of immovable property, the decree -holder or any person enti t led to share in a ratable distribution of the assets or whose interests are affected by the lease may apply to the Recovery Officer to set aside the transfer by lease o n the ground of a material irregulari ty or mistake or fraud in publishing or conducting i t :
Provided that no transfer by lease shall be set aside on the ground of irregulari ty, or fraud unless the Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregulari ty, mistakes or fraud.
( i i) If the application be allowed, the Recovery Officer shall set aside the transfer and may direct a fresh one.
(6)(i) On the expiration of thirty days from the date of auction for lease, if no application to have the lease set aside is made or if such application has been made and rejected, the Recovery Officer shall make an order confirming the transfer by lease:
Provided that , if he shall have reason to think that the transfe r by lease 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 77 made and rejected, he may, after recording his reasons in writ ing, set aside the lease.
( i i) Whenever the transfer by lease of any immovable property is not so confirmed or is set aside, the deposit or the lease money, as the case may be, shall be returned to the lessee.
( i i i)After the confirmation of any such transfer by lease, the Recovery Officer shal l grant a cert if icate of lease bearing his seal and signature to the lessee, and the judgment -debtor and such cert if icate shall state the property leased out, and the name of the lessee, the exact period of lease etc. I t shall also state that on the expiry of this lease period, the property shall revert to the judgment -debtor automatically. The cert if icate shall be conclusive evidence of the fact of the lease in all Courts and Tribunals, where i t may be necessary to prove and no proof of the seal or signature of the Recovery Officer shall be necessary unless the authority before whom it is produced shall have reason to doubt i ts genuineness.
( iv) An order made under this sub -rule shall be final , and shall not be l iable to be questioned in any suit or other legal proceedings.
(7) Where any lawful lessee of immovable property is resisted and prevented by any person other than a person (not being the judgment -debtor) claiming in good faith to be in possession of the property on his own account from obtaining possession of the immovable property leased, any Court of competent jurisdiction on application and production of the cert if icate of lease provided for by sub-rule (6) shall cause the proper process to be issued for the purpose of putt ing such lease in possession, in the same manner as if the immovable property leased out had been decreed to the lessee by a decision of the Court .
(8) It shall be lawful for the Sale Officer to lease the whole or any portion of the immovable property of a judgment -debtor in discharge of money due: Provided always that so far as may be practicable, no larger section or portion of immovable property shall be leased than may be sufficient to discharge the amount due with interest and expenses of at tachment, if any.
Explanation.—For the purposes of this rule and the subsequent rules „Lease‟ means a transfer of a right to enjoy any land made for a certain t ime, expressed, or implied in consideration of a price paid.
66-B. No permanent right to lease holder. —Notwithstanding anything contained in these rules, the right of lease acquired under Rule 66 -A shall not give any new type of tenancy right or r ight to permanent lease to the lessee.
78 66-C. Procedure for reversion of the land to the judgment - debtor.—(1) Prior to the expiry of the lease period, the judgment -debtor whose land was leased out under the provisions of Rule 66 -A. may apply to the Recovery Officer for reversion of his land to him. He shall enclose a cert if ied copy of the cert if icate given to him under sub -rule (i i i) of Rule
(2) The Recovery Off icer shall make an order directly to the lease - holder to handover the possession of the land to the original judgment -debtor.
(3) He shall also issue a cert if icate of termination of the lease, and reversion of the land to the original judgment -debtor bearing his seal and signature to the original judgment -debtor. The cert if icate shall state the property is reverting, the name of the judgment -debtor to whom the property now reverts. The cert if icate shall be conclusive evidenc e of the fact of the termination of the lease and reversion of the land to the original judgment - debtor in all the Courts and Tribunals, where i t will not be necessary to prove i t and no proof of the seal and signature of the Recovery Off icer shall be necessary, unless the authority before whom it is produced, shall have reason to doubt i ts genuineness .
(4) An order made under this sub -rule shall be final and shall not be l iable to be questioned in any Court or other legal proceedings.
(5) Where any lawful original owner and judgment -debtor is resisted and prevented by any person from obtaining possession of the immovable property, that was leased out, the Recovery Officer shall put up the original owner, judgment -debtor in possession in the same manner as if the immovable property had been decreed to him by the decision of the Court .
(6) The retention of the land beyond the period of the lease will be unlawful and subject to penalty of Rs. 10/ - per day per acre to be paid to the original owner of the land .