Report No. 12

Part III

Attachment and Sale of Immovable Property

Attachment

47. Attachment.-

Attachment of the immovable property of the defaulter shall be made by an order prohibiting the defaulter from transferring or charging the property in any way and prohibiting all persons from taking any benefit under such transfer or charge.

48. Service of notice of attachment.-

A copy of the order of attachment shall be served on the defaulter.

[Section 27, Madras Act]

49. Proclamation of attachment.-

The order of attachment shall be proclaimed at some place on or adjacent to the property attached by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and on the notice board of the Collector's office.

50. Attachment to relate back from the date of service of notice.-

Where any immovable property is attached under this Schedule, the attachment shall relate back to, and take effect from, the date on which the notice to pay the arrears issued under this Schedule, was served upon the defaulters.

Sale

51. Sale and proclamation of sale.-

(1) The Collector may direct that any immovable property which has been attached, or such portion thereof as may seem necessary to satisfy the certificate, shall be sold.

[Rule 44, Sch. H, Bengal Act]

(2) Where any immovable property is ordered to be sold, the Collector shall cause a proclamation of the intended sale to be made in the language of the district.

[Rule 46(1), Sch. 11, Bengal Act]

52. Contents of proclamation.-

A proclamation of sale of immovable property shall be drawn up after notice to the defaulter, and shall state the time and place of sale, and shall specify, as fairly and accurately as possible,-

(a) the property to be sold;

(b) the revenue, if any, assessed upon the property or any part thereof;

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

(d) any other thing which the Collector considers it material for a purchaser to know, in order to judge the nature and value of the property.

[Rule 46(2), Sch. II, Bengal Act]

53. Mode of making proclamation.-

(1) Every proclamation for the sale of immovable property shall be made at some place on or near such property by beat of drum or other customary mode, and a copy of the proclamation shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the office of the Collector.

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

(3) Where the property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Collector, otherwise be given.

[Rule 47, Sch. II, Bengal Act]

54. Time of sale.-

No sale of immovable property under this Schedule shall, without the consent in writing of the defaulter, take place until after the expiration of atleast thirty days calculated from the date on which a copy of the proclamation of sale has been affixed on the property or in the office of the Collector, whichever is later.

[Rule 48, Sch. II, Bengal Act]

55. Sale to be by auction.-

The sale shall be by public auction to the highest bidder and shall be subject to confirmation by the Collector.

[Section 36 (First part), Madras Act]

56. Deposit by purchaser and re-sale in default.-

(1) On every sale of immovable property, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent, on the amount of his purchase money, to the officer conducting the sale; and, in default of such deposit, the property shall forthwith be re-sold.

[Rule 68, Sch. II, Bengal Act]

(2) The full amount of purchase money payable shall be paid by the purchaser to the Collector on or before the fifteenth day from the date of the sale of the property.

[Rule 69, Sch. II, Bengal Act]

57. Procedure in default of payment.-

In default of payment within the period mentioned in the preceding rule, the deposit may, if the Collector thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, 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.

[Rule 70, Sch. II, Bengal Act]

58. Authority to bid.-

All persons bidding at the sale shall be required to declare if they are bidding on their own behalf or on behalf of their principals. In the latter case they shall be required to deposit their authority, and in default their bids shall be rejected.

[Section 36 (Fifth), Madras Act]

59. Application to set aside sale of immovable property on deposit.-

(1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Collector to set aside the sale, on his depositing-

(a) for payment to the Income-tax Officer, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of six and a quarter per cent. per annum, calculated from the date of the proclamation of sale to the date when the deposit is made; and

(b) for payment to the purchaser, as penalty, a sum equal to five per cent, of the purchase-money, but not less than one rupee.

(2) Where a person makes an application under the next rule for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule.

[Section 22, Bengal Act]

60. Application to set aside sale of immovable property on ground of non-service of notice or irregularity.-

Where immovable property has been sold in execution of a certificate, the Income-tax Officer, the defaulter, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Collector on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale:

Provided as follows:-

(a) no sale shall be set aside on any such ground unless the Collector is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and

(b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in execution of the certificate.

[Section 23, Bengal Act]

61. Setting aside sale where defaulter has no saleable interest.-

At any time within thirty days of the sale the purchaser may apply to the Collector to set aside the sale on the ground that the defaulter had no saleable interest in the property sold.

[Section 24, Bengal Act]

62. Confirmation of sale.-

(1) Where no application is made for setting aside the sale under the foregoing rules or where such an application is made and disallowed by the Collector, the Collector shall (if the full amount of the purchase-money had been paid) make an order confirming the sale, and, thereupon, the sale shall become absolute.

(2) Where such application is made and allowed, and where, in the case of an application made to set aside the sale on deposit of the amount and penalty and charges, the deposit is made within thirty days from the date of the sale, the Collector shall make an order setting aside the sale :

Provided that no order shall be made unless notice of the application has been given to the persons affected thereby.

[Section 25, Bengal Act]

63. Return of purchase money in certain cases.-

Where a sale of immovable property is set aside, any money paid or deposited by the purchaser on account of the purchase, together with the penalty, if any, deposited for payment to the purchaser, and such interest as the Collector may allow, shall be paid to the purchaser.

[Rule 73, Sch. II, Bengal Act]

64. Sale certificate.(1) Where a sale of immovable property has become absolute, the Collector shall grant a certificate specifying the property sold, and the name of the person who at the time of sale is declared to be the purchaser.

(2) Such certificate shall bear date the day on which the sale became absolute.

[Rule 74, Sch. II, Bengal Act] [Section 38(5), Madras Act]

[Section 181, Bombay Act]

65. Postponement of sale to enable defaulter to raise amount due under certificate.-

(1) Where an order for the sale of immovable property has been made, if the defaulter can satisfy the Collector that there is reason to believe that the amount of the certificate may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the defaulter, the Collector may, on his application, postpone the sale of the property comprised in the order for sale, on such terms and for such period as he thinks proper, to enable him to raise the amount.

(2) In such case the Collector shall grant a certificate to the defaulter, authorising him, within a period to be mentioned therein, and notwithstanding anything contained in this Schedule, to make the proposed mortgage, lease or sale:

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the defaulter, but to the Collector:

Provided also that no mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Collector.

[Rule 66, Sch. II, Bengal Act]

66. Fresh proclamation before re-sale.-

Every re-sale of immovable property, in default of payment of the purchase-money 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 provided for the sale.

[Rule 71, Sch. II, Bengal Act]

67. Bid of co-sharer to have preference.-

Where the property sold is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

[Rule 72, Sch. II, Bengal Act)