TNCOS Rules 126अध्याय XI · Execution

धारा 126 · Procedure in attachment and sale of immovable property

(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, it shall not be necessary to attach it.

(2)

In the attachment and sale or sale without attachment of immovable property, the following rules shall be observed:-

(a)

The application presented under rule 116 shall contain a description of the immovable property to be proceeded against, sufficient for its identification and in case such property can be identified by boundaries or numbers in record of settlement or survey, the specification of such boundaries or numbers and the specification of-the judgement-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 ascertain it.

(b)

(i)The demand notice issued by the Registrar under rule 119 shall contain the name of the judgement-debtor, and 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.

(ii)After receiving the demand notice, the Sale Officer shall serve or cause to be served a copy of the demand notice upon the judgement-debtor or upon some adult 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 his last known residence, or 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 Registrar is satisfied that a judgement-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 Registrar under rule 119 shall not allow any time to the judgement-debtor for the payment of the amount due by him and the property of the judgement-debtor shall be attached forthwith.

(c)

If the judgement-debtor 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 hereinafter specified.

(d)

(i)Where the attachment is required before sale, the officer shall, if possible, cause a notice of attachment to be served on the judgement-debtor personally

(ii)Where personal service in not possible, the notice shall be affixed on some conspicuous part of the judgement-debtor's last known residence, if any.

(iii)The fact of attachment shall also be proclaimed by beat of drum or other customary mode at some place, on or adjacent to, such property and at such other place or places as the Registrar may consider necessary to give due publicity to the sale.

(iv)The attachment notice shall set forth that unless the amount due with interest and expenses be paid within the date therein mentioned, the property shall be brought to sale.

(v)A copy of the notice shall be sent to the decree holder.

(vi)Where the Sale Officer so directs the attachment shall also be notified by public proclamation in the District Gazette.

(e)

(i)Proclamation of sale shall be published by affixing a notice in the office of the Registrar and taluk office at least thirty days before the date fixed for the sale and also by beat of drum in the village on two consecutive days previous to the date of sale and on the date of sale prior to the commencement of the sale.

(A)the property to be sold;

(B)any encumbrance to which the property is liable;

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

(D)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.

(ii)Such proclamation shall, where attachment is required before sale, be made after the attachment has been effected.

(iii)Notice shall also be given to the decree holder and judgement-debtor.

(iv)The proclamation shall state the time and place of sale and specify as fairly and accurately as possible,-

(f)

(i)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 one hundred rupees, furnish to the Sale Officer within such time as may be fixed by him or by the Registrar an encumbrance certificate from the Registration department for a period of not less than twelve years-

(A)in case falling under the proviso to sub-rule (i), prior to the date of the application for execution; and

(B)in other cases, prior to the date of attachment of the property sought to be sold.

(ii)The time for production of the encumbrance certificate may be extended at the discretion of the Sale Officer or the Registrar, as the case may be:

Provided that in eases where an encumbrance certificate is not obtained owing to the destruction of the connected records, an affidavit from the Village Administrative Officer in regard to the encumbrance known to him supported by a certificate from the Registration Department that an encumbrance certificate cannot be granted owing to the destruction of the connected records, shall be accepted in the place of an encumbrance certificate.

(g)

(i)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 Registrar or the Sale Officer may, in his discretion, adjourn the sale to a specified day and hour recording his reasons for such adjournments.

(ii)Where a sale is so adjourned for a longer period than seven days, a fresh proclamation under clause (e) shall be made, unless the judgement-debtor consents to waive it.

(iii)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 Registrar and the Taluk Office, whichever is later.

(iv)The time and place of sale shall be fixed by the Registrar and the place of sale 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 Registrar.

(h)

The Sale Officer may sell the whole or any portion of the immovable property of a judgement-debtor in discharge of money due, provided also that, so far as may be practicable, no larger section or portion of the immovable property shall be sold than what is sufficient to discharge the amount due with interest and expenses of attachment, if any, and sale.

(i)

No person shall be allowed to bid in the auction unless he remits with the Sale Officer such amount as may be fixed by him towards earnest money deposit:

Provided that, where the decree-holder is the bidder and is entitled to set off the purchase money under clause (o), the Sale Officer shall dispense with the requirement of this clause.

(j)

The earnest money deposit of the unsuccessful bidders shall be refunded to them immediately after the sale is over. The earnest money deposit of the successful bidder shall be adjusted towards the deposit referred to in clause (k).

(k)

A sum of money equal to fifteen 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 and the earnest money deposit of the defaulting purchaser shall be forfeited to Government after defraying therefrom the expenses of the resale:

Provided that, where the decree-holder is the purchaser and is entitled to set off the purchase money under clause (o), the Sale Officer shall dispense with the requirements of this clause.

(l)

The remainder of the purchase money and the amount required for the general stamp for the certificate under sub-rule (3) of rule 129 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 Registrar up to thirty days from the date of sale:Provided further that in calculating the amount to be paid under this clause, the purchaser shall have the advantage of any set-off to which he may be entitled under clause (o).

(m)

In default of payment within the period mentioned in clause (k), the deposit may, if the Registrar 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.

(n)

Every resale of immovable 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 fresh proclamation in the manner and for the period herein before specified for the sale.

(o)

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.

(p)

Where prior to the date fixed for sale, the judgement-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 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.

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