Section 104 in Haryana Co-operative Societies Rules, 1989
104. Procedure in execution of award etc.
(1)Any decree holder requiring the provisions of clause (b) of section 110 to be applied shall apply to the Recovery Officer within whose jurisdiction defaulter resides [or carries on business] [Added by Haryana Notification No. S.O.5/H.A. 22/1984/Ss. 131 and 14A/2007. Dated 19.1.2007.] or the property of the defaulter is situated.(2)Every such application shall be made in the form specified by the Registrar and shall be signed by the decree-holder. The decree-holder may indicate whether he wishes to proceed against the immovable property charged or mortgaged to the decree-holder or other immovable property or to secure the attachment of movable property.(3)On receipt of such application the Recovery Officer shall verify the correctness and genuineness of the particulars set forth in the application with the records, if any, in the office of the Registrar and prepare a demand notice in writing in duplicate in the form specified by the Registrar, setting forth the name and address of the defaulter and the amount due and forward it to a Sale Officer.(4)Unless the decree holder has expressed a desire that proceedings shall be taken in particular order as laid down in sub-rule (2) execution shall ordinarily be taken in the following manner:-(i)Movable property of the defaulter shall be first proceeded against, but this shall not preclude the immovable property being proceeded against simulteaneously in case of necessity.(ii)If there is no movable property, or if the sale proceeds of the moveable property or properties attached and sold are insufficient to meet in full the demand of the decree holder, the immovable property charged or mortgaged to the decree-holder or other immovable property belonging to the defaulter may be proceeded against.(5)In the seizure and sale of movable property, the following procedure shall be observed :-(a)The Sale Officer shall, after giving prior notice to the decree- holder and the defaulter, proceed to the village or locality where the defaulter resides or the property to be distrained is situated and serve a demand notice to the defaulter if he is present. If the amount due together with the expenses is not at once paid, the Sale Officer shall make the distress and shall immediately deliver to the defaulter a list of inventory of the property distrained and an intimation of the place and day and hour at which the distrained property will be brought to sale if the amounts due are not discharged by him. If the defaulter is absent, the Sale Officer shall serve the demand notice on some adult member of his family or on his authorised agent or when such service cannot be affected, shall affix a copy of the demand notice on some conspicuous part of his residence. He shall then proceed to make the distress and shall fix, the list of the property attached, on the usual place of residence of the defaulter endorsing thereon the place where the property may be lodged or kept and place, day and hour of sale.(b)After the distress is made, the Sale Officer may arrange for the custody of the property attached. If the sale officer requires the decree holder to undertake the custody of the property he shall be bound to do so and any loss incurred owing to his negligence shall ve nade good by the decree-holder. If the attached property is livestock, the decree holder shall be responsible for providing the necessary food therefor. The Sale Officer may, at the instance of the defaulter or of any person claiming and interested in such property leave it at the village or place where it was attached in the charge of such defaulter or person, if he enters into a bond in the form specified by the Registrar with one or more sufficient sureties for the production of the property when called for.(c)The distress shall be made after sunrise and before sunset and not at any other time.(d)The distress levied shall not be excessive that is to say the property distrained shall be as nearly as possible propertionate to the sum due by the defulter together with interest and all expenses incidental to the disstraint,detention and sale.(e)If crops or un-gathered productes of the land beloninging to a defaulter are attached, the sale officer may cause them to be sold when fit for reaping or gathering or at his option may cause them to be reaped or gathered in the season and stored in proper place until sold . In the later case the expenses of reaping or gathering and storing such crops or products shall be defrayed by the defaulther upon his redeeming the property or from the proceeds of the sale in the event of its being sold .(f)The Sale Officer shall not work the bullock or cattle or make use of goods or effects distrained and he shall provide the necessary food for the cattle or livestock the expenses attending which shall be defrayed by the defaulter upon his redeeming the property or from the proceeds of sale in the event of its being sold.(g)It shall be lawful for the Sale Officer to force open any stable, cow house granary godown, outer-house or other building and he may also enter any dwelling house the out door of which may be open and may break open the door or any room in such dwelling house for the purpose of attaching property belonging to a defaulter and lodged therein, provided always that it shall not by lawful for the officer to break open or enter apartment in such dwelling house appropriated for the zenana or residence of women except as hereinafter provided.(h)When the Sale Officer may have reason to suppose that the property of the defaulter is lodged within a dwelling house the outer door of which may be shut or within any apartments appropriated to women which by custom or usage are considered private, the Sale Officer shall represent the fact to the Officer Incharge of the nearest police station. On such representation the Officer Incharge of the said station shall send a police officer to the spot in the presence of whom the Sale Officer may force open the outer door of such dwelling house and in like manner he may break open the door of any room within the house except the zenana. The Sale Officer may also in the presence of a police officer, after due notice is given for the removal of women within a zenana and after furnishing means for their removal in a suitable manner if they be women of rank, who according to the custom or usage cannot appear in public, enter the zenana apartments for the purpose of destraining the defaulter's property, if any deposited therein, but property if found, shall be immediately removed from such apartment after which they shall be left free to the former occupants.(i)The Sale Officer shall on the day previous to and on the day of sale cause proclamation of the time and place of the intended sale to be made by beat of drum in the village or locality in which the defaulter resides and in such other places as the officer may consider necessary to give due publicity to the sale. No sale shall take place until after the expiration of the period of fifiteen days from the date on which the slae notice has been served or affixed in the manner prescribed in clause (a), provided that where the property seized is subject to speedy and natural decay or where the expense of keeping it in custody is likely to exceed its value, the Sale Officer may sell it at any time before the said period of fifteen days unless the amount due is sooner paid;(j)At the appointed time the property shall be put up in one or more lots as the Sale Officer may consider advisable and shall be disposed of 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 reason. Where the property is sold for more than the amount due, the excess amount, after deducting the interest and the expenses of process and the charges shall be paid to the defaulter: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 a sale is so adjourned for a period longer than seven days, a fresh proclamation under clause (i) shall be made unless the defaulter cosents to waive it.(k)The property shall be paid for in cash at the time of sale as soon therafter as the officer holding the sale shall appoint and the purchaser shall not be permitted to carry away any part of the property, shall until he has paid for it in full. Where the purchaser may fail in the payment jof purchase money the property shall be resold.(l)Where it is proved to the satisfaction of any civil court of competent jurisdiction that any property which has been distrained under these rules has been forcibly or clandestinely removed by any person, the court may order forthwith such property to be restored to Sale Officer .(m)Where prior to the day fixed for sale, the defaulter or any person acting on his behalf or any person claiming an interest, in the property attached pays the full amount due including interest and other costs incurred in attaching the property, the Sale Officer shall cancel the order of attachment and release the property forthwith.(n)The movable properties mentioned as exempt from attachment in the proviso to section 60 of the Code of Civil Procedure, 1908 (5 of 1908) shall not be liable to attachment or sale under these rules.(6)Where the movable property to be attached is the salary or allowance or wages of a public officer or of servant of a local authority or a firm or a company or any other institution, the Recovery Officer may, on receiving a report from the Sale Officer, order that the amount shall, subject to the provision of section 60 of the Code of Civil Procedure, 1908 (5 of 1908) be withheld from such salary or allowances or wages either in one payment or by monthly instalments as the said Recovery Officer may direct and upon notice of the order the officer or other person, whose duty is to disburse such salary or allowances or wages shall withhold and remit to the Sale Officer the amount due under the order or the monthly instalment, as the case may be.(7)(i)Where the property to be attached consists of the share or interest of the defaulter in movable property belonging to him and another as co-owners the attachment shall be made by a notice to the defaulter, prohibiting him from transferring the share or interest or charging it in any way.(ii)Where the property to be attached is a negotiable instrument not deposited in a court nor in the custody of a public officer, the attachment shall be made by actual seizure and the instrument shall be deposited with the Recovery Officer ordering the attachment subject to further order.(iii)Where the property to be attached is in the custody of any court for public officer, the attachment shall be made by a notice to such court or officer requesting that such property and any interest or dividend becoming payable thereon may be held subject to the further orders of the Recovery Officer issuing the notice;Provided that where such property is in the custody of a court or Recovery Officer of another district, any question of title or priority arising between the decree-holder and any other person not being the defaulter, claiming to be interested in such property by virtue of any assignment, attachment or otherwise shall be determined by such court or Recovery Officer.(8)(i)Where the property to be attachend is a decree either for the payment of money or for sale or enforcement of a mortgage or charge, the attachment shall be made by the order of the Registrar if the decree sought to be attached was passed by the Registrar under section 103 or by an arbitrator.(ii)Where the property to be attached is a decree of the nature referred to in sub-rule (1) the attachment shall be made by the issue of a notice by the Recovery Officer to the holder of such decree prohibiting him from transferring or charging the same in any way.(iii)The holder of a decree attached under sub-rule (ii) shall give the Recovery Officer executing the decree such information and aid as may reasonably be required.(iv)On the application of the holder of a decree sought to be attached, the Recovery Officer making an order of attachment shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the said Recovery Officer or otherwise, shall be recognised so long as attachment remain in force.(9)Where the movable property to be attached is:-(a)a debt due to the defaulter in question; or(b)a share in the capital of a corporation or a deposit invested therein; or(c)other movable property not in the possession of the defaulter except property deposited in or in the custody of any civil court, the attachment shall be made by a written order signed by the Recovery Officer prohibiting:-(i)in the case of debt, the creditor from recovering the debt and the debtor from making payment thereof;(ii)in the case of share or deposit the person in whose name the share or the deposit may be standing, from transferring the share of or deposit or receiving any dividend or interest thereon; and(iii)in the case of any other movable property except aforesaid the person in possession of it from giving it over to the defaulter.A copy of such order shall be sent, in the case the debt to the debtor, in the case of share or the deposit to the proper officer of the corporation and in case of any other movable property except as aforesaid to the person in possession of such property. As soon as the debt referred to in clause (a) or the deposit referred to in clause (b) above matures the Recovery Officer may direct the person concerned to pay the amount to him. Where the share is not withdrawable the said Recovery Officer shall arrange for its sale through a broker. Where the share is withdrawable, its value shall be paid to the said Recovery Officer or to the party referred to in clause (c), the person concerned shall place it in the hands of the said Recovery Officer as it becomes deliverable to the defaulter.(10)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.(11)In the attachment and sale without attachment of immovable property the following procedure shall be observed :-(a)The application presented under sub-rule (3) 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 a record of settlement or survey, the specification of such boundaries or numbers and the specification of the defaulter 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) shall contain the name of the defaulter, the amount due, including the expenses, if any the time allowed for payment and in the 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 defaulter 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 required to be attached and sold or sold without attachment as the case may be:Provided that where the Recovery Officer is satisfied, that a defaulter 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) shall not allow any time to the defaulter for payment of the amount due by him and the property of the defaulter shall be attached forthwith.(c)If the defaulter 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 specifed below ;(d)Where attachment is required before sale, the Sale Officer shall if possible, cause a notice of attachment to be served on the defaulter personally. Where personal service is not possible the notice shall be affixed in some conspicious part of the defaulters, last known residence, if any. The fact of attachment shall also be proclaimed by the beat of drum or other customary mode at some place in 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 mentioned therein the property will be brought to sale. A copy shall be sent to the decree-holder. Where the Sale Officer so directs the attachment shall be notified by public proclamation in the official gazette.(e)Proclamation of sale shall be published by affixing a notice in the office of the Recovery Officer and the Tehsil Office at least thirty days before the date fixed for sale and also by the beat of drum in the village or locality on two consecutive days previous to the date of sale and on the day of sale prior to the commencement of the sale. 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 defaulter. The proclamation shall state the time and place of sale and specify as fully and accurately as possible :-(i)the property to be sold;(ii)any encumbrance to which the property is liable;(iii)the amount of recovery for which sale is ordered, and(iv)[any] [Substituted for the words 'every' by Haryana Notification No. S.O.5/H.A. 22/1984/Ss. 131 and 14A/2007. Dated 19.1.2007.] 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)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 when 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 (10), prior to the date of application for execution. The time for production of the encumbranced 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 when the price offered appears to be unduly low or for other reasons and provided also that the Recovery Officer or the Sale Officer, may, in his discretion, adjourn the sale to a specified day or hour, recording his reason 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 it. 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 or locality 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 case where an encumbrance certificate is not obtainable owing to the destruction of the connected records, an affidavit from the 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 lieu of an encumbrance certificate.(g)A sum of money equal to 15 per cent of the price of immovable property shall be deposited by the purchaser in the hards of the sale officer at the time of the purchase and in default of such deposit, the property shall fourthwith 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 rule.(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 the 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 within the period mentioned in the last preceeding clause the deposits, may if the Recovery Officer thinks fit after defraying the expenses of the sale, be forfeited 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 re-sale 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 the manner and for the period hereinbefore prescribed for the sale.(k)Where a decree-holder purchase the property, the purchase money and the amount of demand shall be set off against one another and the Sale Officer shall enter upon satisfaction of the demand in whole or in part accordingly.(12)Where prior to the date fixed for a sale, the defaulter or any person acting on his behalf or any person claiming interest in the property sought to be sold tenders payments of the full amount due together with interest, travelling 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 the order of attachment in case the property has already been attached.(13)(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 cost due in respect of such amount less the amount which may since the date of such proclamation has 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 five per cent deposited by the applicant:Provided that if more person than one have made deposit and application under this sub-rule the application for the first depositor to the officer authorised to set aside the sale shall be accepted.(iii)If a person applied under sub-rule (14) to set aside the sale of immovable property he shall not be entitled to make an application under this sub-rule."(14)(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 to a rateable distribution of the assets or whose interest are effected by the sale may apply to the Recovery Officer to set aside the sale on the ground of material irregularity or mistake or fraud in publishing or conducting it:Provided that no sale shall be set aside on the ground of irregularity or fraud unless the said Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of such irregularity mistake or fraud.(ii)If the application is allowed, the said Recovery Officer shall set aside the sale and may direct a fresh one.(iii)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 said Recovery Officer shall make order confirming sale:Provided that if he shall have reason to believe 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 writting set aside the sale;(iv)Whenever the sale of any immovable property is not confirmed or is set aside, the deposit or the purchase money as the case may be, shall be returned to the purchaser.(v)After the confirmation of any such sale, the said Recovery Officer shall grant a certificate of sale in such form as may be specified by the Registrar 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 reasons to doubt its genuineness.(15)Where any lawful purchaser of immovable property is resisted and prevented by any person other than a person (not being the defaulter) claiming in good faith to be in possession of the property on his own account from obtaining 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 (14) 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 purchase had been decreed to the purchaser by a decision of the Court.(16)It shall be lawful for the Sale Officer to sell the whole or any portion of the immovable property of a defaulter in the 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, if any, of attachment and sale.(17)Where an attachment has been made under these rules any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other money contrary to such attachment shall be void as against all claims enforceable under the attachment.Explanation. - For the purpose of this sub-rule, claims enforceable under an attachment include claims for the rateable distribution of assets under sub- rule (24).(18)Persons employed in serving notice or in other process under these rules shall be entitled to travelling allowance at such rates as may, from time to time be fixed by the Recovery Officer.(19)Where the cost and charges incurred in connection with attachment and sale of movable property or the attachment and sale or sale without attachment of immovable property under this rule, exceeds the amount of the cost deposited by the decree-holder, such excess shall be deducted from the sale proceeds of the property sold or the money paid by the defaulter as the case may be, and the balance shall be made available to the decree-holder.(20)Every person making a payment towards any money due for the recovery of which application has been made shall be entitled to a receipt for the amount signed by the Sale Officer or other Officer empowered by the Recovery Officer in that behalf. Such receipt shall state the name of the person making the payment and the subject matter in respect of which the payment is made.(21)(a)Where any claim is preferred to, or any objection is made the attachment of any property under this rule on the ground that such property is not liable to such attachment the Sale Officer shall investigate the claim or objection and dispose it of on merits :Provided that no such investigation shall be made when the Sale Officer considers that the claim or objection is frivolous.(b)Where the property to which the claim or objection relates has been advertised for sale, the Sale Officer, may postpone the sale pending the investigation of the claim or objection.(c)Where a claim or an objection is preferred, the party against whom an order is made may institute a suit within six months from the date of order to establish the right which he claims to the property in dispute, but subject to the result of such suit if any, the order shall be conclusive.(22)(i)Any deficiency of price which may happen on a re-sale held under clause (j) of sub-rule (11) by reason of the purchaser's default, and all expenses attending such re-sale shall be certified by the Sale Officer to the Recovery Officer and shall at the instance of either the decree-holder or the defaulter be recoverable from the defaulting purchaser under the provisions of this rule. The costs, if any, incidental to such recovery shall also be borne by the defaulting purchaser.(ii)Where the property may, on the second sale, is sold for a higher price than the first sale, the defaulting purchaser at the first sale shall have no claim to the difference or increase.(23)Where any property has been attached but by reason of the decree holder's default, the Recovery Officer is unable to proceed further with the application, for execution, he shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease.(24)(a)Where the Sale Officer attaches or has attached, any property not in the custody of any court, which is already under attachment made in execution of a decree of any Court, such Court shall receive and realise such property and shall determine claims thereto and any objection to the attachment thereof:Provided that where the property is under attachment in the execution of decree of more courts than one, the Court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of the highest grade, or where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.(b)Where assets are held by the Sale Officer and before the receipt of such assets demand notice in pursuance of application for execution awards or order against the same defaulter have been received from more than one decree holder and the decree-holders have not obtained satisfaction the assets after deducting the cost of realisation shall be rateably distributed by the Sale Officer among all such decree-holders in the manner provided in section 73 of the Code of Civil Procedure, 1908.(25)Where a defaulter dies before the demand has been fully satisfied, an application may be made against the legal representative of the deceased and there upon all the provisions of this rule shall, save as otherwise provided in this sub-rule, apply as if such legal representative was defaulter. Where the award or order is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been only duly disposed of and for the purpose of ascertaining such liability, the Recovery Officer executing the awards or order may, of his own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as he thinks fit.(26)Where in connection with the proceedings on an application under Section 110 of the Act any person requires the issue of any process or objects to any process issued or objects to any order passed, he shall pay such fee as may be specified by the Registrar in this behalf.Explanation. - Under the context otherwise requires, in this rule the "decree-holder" means the person in whose favour award, order or decision has been given and "decree" means the award, order or decision.
