Sale of property under Code of Civil Procedure
It is provided that when the parties goes to the executing court for execution of a decree, the executing court has to do several tasks ranging from whatever the decree requires for arrest and detention of the judgement debtor to his attachment of property and so on. For this purpose only, for payment of costs as per decree to the decree-holder, the sale of such property is done. The provision regarding the same are dealt specifically under Section 65 to 73 and Order XXI Rule 64 to 94 of the Code of Civil Procedure in regard to the general rule as to sale of property with respect to sale of property under rule 64 to 73 of Order XXI of the Code.
It is provided that the executing court has power to make an order to attach a property and sale it so that the amount so received must be distributed among the claimants. Any court executing a decree may Order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.[1] Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the court or by such other person as the court may appoint in this behalf, and shall be made by public auction in manner prescribed.[2]
The next step is moreover the one which must be done carefully. It is the proclamation of such sale by the court. It has been held that it is the duty of the court to ensure that the requirements of Rule 66 are complied with.[3] The procedure of such is provided under Rule 66 as firstly, where any property is ordered to be sold by public auction in execution of a decree, the court shall cause a proclamation of the intended sale to be made in the language of such court.
Secondly, such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale, and specify as fairly and accurately as possible so that the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part, the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the government, any encumbrance to which the property is liable, the amount for the recovery of which the sale is ordered and every other thing which the court considers material for a purchaser to know in order to judge of the nature and value of the property:
There are two provisos attached to the clause which says that where notice of the date for settling the terms of the proclamation has been given to the judgment debtor by means of an Order under rule 54, it shall not be necessary to give notice under this rule to the judgment debtor unless the court otherwise directs. Further, it provides that nothing in this rule shall be construed as requiring the court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties.
Thirdly, every application for an Order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation. Fourthly, the purpose of ascertaining the matters to be specified in the proclamation, the court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.
The mode which is provided for making such sale is provided under Rule 67 which provides that every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, where the court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, on in both, and the costs of such publication shall be deemed to be costs of the sale. Where 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 court, otherwise is given.
The time for holding the sale is also provided under Rule 68 which provides that unless the property is perishable, it must be sold consent of judgement debtor in writing from fifteen days in case of immovable property and seven days in case of movable property from the date of proclamation of such sale by the court.
Henceforth as a concluding remark it can be said that the procedure of sale of property is both stringent and exhaustive and may mould in each circumstance. Not only the procedural aspect as to proclamation must be property followed by the court but also the obligation which the court adheres as to default of purchaser must also be fulfilled. The decree holder is provided a remedy for his aggrieved case and the defaulter is called upon by court to deal with his default. The most peculiar feature of the auction of such property for recovery of sums is that decree holder is not allowed to participate in bidding or purchase of such property in a decree unless prior permission of the executing court[4] is given whereas such provision is rather stringent for officers of court wherein they are completely restricted from participation in biding and purchase of the property so auctioned.[5]
References:
[1] Order XXI Rule 64
[2] Order XXI Rule 65
[3] Shalimar Cinema v. Bhasin Film Corporation AIR 1987 SC 2081
[4] Order XXI Rule 72
[5] Order XXI Rule 73
