Section 123 in Himachal Pradesh Co-Operative Societies Rules, 1971
123. Attachment and sale of immovable property.
(1)Immovable property shall not be sold in execution of a decree unless such property has been preciously 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 procedure shall be observed:-(a)The application presented under sub-rule (2) of rule 119 containing 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 a 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)The demand notice issued by the recovery officer under sub-rule (3) of rule 119 shall contain the name of the judgement-debtor, the amount due, including the expenses, if any, and the BHATTA to be paid to the persons 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 sold or to be sold 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 sold or sold without attachment, as the case may be :Provided that where the recovery office 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 119 shall not allow any time 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 sell, or sell without attachment, as the case may be, the immovable property specified in the demand notice for execution.(d)Where the attachment is required before sale, 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 know residence, if any. The fact of attachment shall also be proclaimed by a 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 property will be brought to sale. A copy of the notice 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, nearest office of the financing bank, and in the tehsil office, at least thirty days before the date fixed for the sale. It shall also be published by beat of drum in the village. 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 judgement-debtor. The proclamation shall state the time and place of sale and specify as fairly and accurately as possible the following particulars :-(i)the property for sale;(ii)any encumbrance to which the property is liable;(iii)the amount for recovery of which the 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;(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 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 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 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:Provided further 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 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.(ii)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 time and place of sale shall be fixed by the recovery officer 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 recovery officer :Provided that in cases, where encumbrance certificate is not obtainable, owing to the destruction of the connected records, an affidavit from the village Patwari with 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 25 per cent of the price of which the immovable property is purchased in auction shall be paid by the purchaser to the sale officer at the time of the purchase, and in default of such deposits, 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 (k) the sale officer shall dispense with the requirements of this clause.(h)The remainder of the purchase money and the amount required for the general stamp for the sale certificate 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 recovery officer 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 entitled, under clause (k).(i)In default of payment of the purchase money within the period mentioned in clause (h), the deposit may, if the recovery officer thinks fit, after defraying the expenses of the sale, be forfeited to the State 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.(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 proclamation, in the manner and for the period herein before 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 upto satisfaction of the decree in whole or in part accordingly.(3)Where prior to the date fixed for sale, the judgement-debtor or any person acting on his behalf of any person claiming an interest in the property sought to be sold, tenders payment of the full amount due, together with interest, BHATTA 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)(i)Where immovable property has been sold by the sale officer, any person either owing 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 :-(a)for payment to the purchaser a sum equal to five per cent 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 attachment, if any, and sale and other costs due in respect of such amount, less the 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 sale, the recovery officer, shall pass an order setting aside the sale and shall repay to the purchaser, the purchase money so far it has been deposited, together with the five per cent deposited by the applicant :Provided that, if more persons than one have made deposits 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 sale 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 sale of immovable 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 the sale on the ground of a material irregularity, or mistake, or fraud, in publishing the proclamation or conducting the sale ;Provided that, no sale 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 an irregularity, mistake or fraud.(ii)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 application 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 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 :(ii)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.(iii)After the confirmation of any such sale, 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 purchase in all courts and tribunals, where it may be necessary to prove it, 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 leable to be questioned in any suit, or other legal proceeding.(7)Where any lawful purchaser 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 containing possession of the immovable property purchased, any court of competent jurisdiction on application and production of the certificate of sale provided for by sub-rule (6) shall cause the proper process to be issued for the purpose of putting such purchaser in possession, in the same manner as if the immovable property purchased had been decreed to the purchaser by a decision of the court.(8)It shall be lawful for the sale officer to sell the whole or any portion of the immovable property of 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 sold than may be sufficient to discharge the amount due with interest and expenses of attachment, if any, and sale.
