CCOS Rules 66AChapter X · Execution of Decrees

Section 66A · [ Attachment and lease of immovable property. [Inserted by notification No. 269-4858-XV-70, dated 13-1-71.]

Text size — level 1 of 4

(1)

Immovable property shall not be 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, it shall not be necessary to attach it.

(2)

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

(a)

The application presented under sub-rule (2) of Rule 62 shall contain 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 a record of settlement of survey, the specification of such boundaries or numbers and the specifications of the judgement-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 ascertain it.

(b)

The demand notice issued by the Recovery Officer under sub-rule (3) of Rule 62 shall contain the name of the Judgement-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 time allowed for payment and in case of non-payment, the particulars of the properties to be attached and transferred or to be transferred without attachment, 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 Judgement-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 attachment, as the case may be:
Provided that where the Recovery Officer 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 Recovery Officer under sub-rule (3) of Rule 62 shall not allow anytime to the Judgement-debtor for 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 transfer or transfer 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 transfer by lease, the Sale Officer shall, if possible, cause a notice of attachment to be served on the Judgement-debtor personally, where personal service is not possible, the notice shall be affixed in some conspicuous part of the Judgement-debtors last known residence, if any. The fact of attachment 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 transfer by lease. The attachment notice shall setforth 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 thirty days before the date fixed for the transfer by lease. It shall also be"published by beat of drum in the village. 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 Judgement-debtor. The proclamation shall state the time and place of transfer by lease and specify as fairly and accurately as possible-
(i)the property to be transferred by lease;
(ii)any encumbrance to which the property is liable;
(iii)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.

(ii)

At the end of the period specified in the proclamation, the land will revert to the Judgement-debtor for which the Recovery Officer will issue a certificate in prescribed form. The retention of the land beyond the period will result in penalty specified above.

(iii)

The terms and conditions for the said lease may include that the lessee pays entire dues of the Judgement-debtor to the satisfaction of the decree-holder in one instalment, the exact period of lease, prohibition 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, etc. These terms may be decided by the Registrar under Section 84 of the Chhattisgarh Co-operative Societies (Amendment) Act, 1970.

(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 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 one year prior to the date of attachment of the property sought to be transferred or in cases falling under the proviso to sub-rule (1) 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 transfer 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:Provided further that the Recovery Officer 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 proclamation under clause (e) shall be made, unless the Judgement-debtor consents to waive it: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.
(ii)The auction for transfer by lease 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 time and place of auction for transfer by lease shall be fixed by the Recovery Officer and the place of auction shall be the village where the property to be transferred 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 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 33 per cent of the price for which the immovable property is leased out in auction shall be paid by the lessee to the Sale Officer at the time 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 entitled 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 certificate 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 entitled under clause (k).
(i)In default of payment of the tease money within the period mentioned in clause (h), the deposit may, if the Recovery Officer thinks fit after defraying the expenses of the lease be forfeited to the State Government and the defaulting lessee shall forfeit all claims to the property or to any part of the sum for which it 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 Judgement-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 full amount due together with interest, Bhatta and other expenses incurred in bringing the property to lease including the expenses of attachment, if any, the Sate Officer shall forthwith release the property after cancelling, where the property has been attached the order of attachment.

(4)

(i)

Where immovable property has been transferred by lease by Sale Officer, any person either owning such property or holding an interest therein by virtue of a title acquired before such transfer may apply to have the transfer set aside on his depositing 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 attachment, 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.

(ii)

If such deposit and application are made within thirty days from the date of auction for lease, the Recovery Officer, shall pass an order setting aside the transfer and shall repay to the lessee the lease money so far as it 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.

(iii)

If a person applies under sub-rule (5) to set aside the transfer of immovable property, he shall not be entitled to make an application under this sub-rule.

(5)

(i)

At any time within thirty days from the date of the auction for lease of immovable property, the decree-holder or any person entitled 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 on the ground of a material irregularity or mistake or fraud in publishing or conducting it :
Provided that no transfer by lease shall be set aside on the ground of irregularity, or fraud unless the Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity, mistakes or fraud.

(ii)

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 transfer 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 made and rejected, he may, after recording his reasons in writing, set aside the lease.

(ii)

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.

(iii)

After the confirmation of any such transfer by lease, the Recovery Officer shall grant a certificate of lease bearing his seal and signature to the lessee, and the Judgement-debtor and such certificate shall state the property leased out. and the name of the lessee, the exact period of lease etc. It shall also state that on the expiry of this lease period, the property shall revert to the Judgement-debtor automatically. The certificate shall be conclusive evidence of the fact of the lease in all Courts and Tribunals where it 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 its genuineness.

(iv)

An order made under this sub-rule shall be final, and shall not be liable 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 Judgement-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 certificate of lease provided for by sub-rule (6) shall cause the proper process to be issued for the purpose of putting 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 Judgement-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 attachment, 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 time, expressed, or implied in consideration of a price paid.

Your private note on this section

Only you can see this note.