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Published : November 16, 2013 | Author : YSRAO JUDGE
Category : Civil Laws | Total Views : 6345 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Sale of Immovable Property (E.P Steps)

Adjudicatory bodies ensue the law, equity, principles of natural justice and good conscious. The word '' Execution'' is not defined in Code of Civil Procedure,1908 (herein after referred as CPC). The word '' Execution'' can, in this context, be understood as '' a judicial act by which a public officer is empowered to carry judgments or orders into effect.'' In other words, it means the carrying into effect the judgment or order delivered in a court of law. In England, the usual mode of execution of money judgment is by writ of ''fieri facias'' (popularly known as fi. fa.). However, It is apt to say the process of administration of justice is known as '' Execution''. In India, Order 21 of CPC consists several rules i.e Rules 1 to 106. Besides that the execution proceedings deal with various sections and the High Courts Amendments. Inasmuch as there are several rules, sections, and The High Courts Amendments, there is much confusion to understand all of them at once. Order 21 provides several issues such as '' Courts executing decrees, Payment under decrees, Application and process for execution, Mode of execution, Stay of execution, arrest and detention in Civil Prison, Attachment of property, Adjudication of claims and objections, Sale generally, Sale of movable property, Sale of immovable property.

Conducting of Sale of immovable property is a great task. The procedure for sale of immovable property creates some confusion. Yet, if you pay attention on Order 21 of CPC and Civil Rules of Practice, one can easily understand the procedure for conducting sale of Immovable property. This article is strictly restricted on the topic of sale of immovable property. I have given a model of E.P Steps as to sale of immovable property which is helpful to young judicial officers and lawyers and have also given notes with relevant case law on important aspects.

NOTES

Mohammed Abdul Sattar Vs.Mrs. Shahzad Tahera and another, 2012(2)ALT230, HELD.
Under Order 21 Rule 22 CPC, notice, if the execution is beyond two years from the date of the decree, is mandatory. From this ruling, it is clear that if the execution is below two years, no notice under order 21 rule 22 CPC is necessary.
***
N. Mohana Kumar  Vs. Bayani Lakshmi Narasimhaiah and others, 2000(1)ALT472, HELD.
If once a notice is given at the stage of attachment under Order 21, Rule 54(1-A) CPC it is not necessary to give further opportunity to the judgment-debtor under first proviso to Order 21, Rule 66(2) CPC.
                           
Akasim Bi and others  Vs. T.G. Lakshmayya Thimmayya Setty and others, 1999(6)ALD402, 1999(6)ALT151, Held:
sub-rule (1) of Rule 54 empowers the executing Court to attach the EP schedule property by issuing a prohibitory order. Sub-rule (1 A) of Rule 54 mandates that such an order shall also require the judgment-debtor to attend the Court on a specified date 'to take notice of the date to be fixed for settling the terms of the proclamation of sale', which will be done under the provisions of Rule 66 of Order 21, to which a reference was already made. Thus, if a notice as required under Rule 54 is issued to the JDr., requiring him to take notice of the date to be fixed for settlement of terms of the proclamation of sale, no separate notice to the judgment-debtor under the provisions of Rule 66 of Order 21 of the Code need be issued for the very same purpose. The
***
Notice under Or.21, Rule 66.
The judgment-debtors were not served with any notice as required under sub-rule (1A) of Rule 54 of Order 21 CPC. In such a case, the first proviso to Rule 66 of Order21 CPC becomes inapplicable and consequently, the judgment-debtors in this case are entitled to a notice under Rule 66 of Order 21 CPC, which, as a matter of fact, was not served on them before drawing the sale proclamations. As held by the Supreme Court in Desk Bandhu Gupta v. N.L. Anand and Rajinder Singh, MANU/SC/0562/1994 : (1994)1SCC131 , the non-service of such a notice before the drawing up of sale proclamation, sometimes causes irremedial injury to the judgment-debtor. 

***
Enquiry under Or.21, Rule 64 CPC
 
Ambati Narsayya v. M.Subba Rao, AIR1990SC119. HELD.
"Duty is cast upon the execution Court under Order 21, Rule 64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is mandate of the Legislature which cannot be ignored."
***
Takkeaseela Pedda Subba Reddi v. Pujari Padmavathamma and Ors. 1977(3) SCC 337;  Akula Veeraju Vs. Karumuru Rukmabai, W/o. Veerabhadra Rao and Ors. MANU/AP/0927/2010. HELD:
Under Order 21 Rule 64 of Code of Civil Procedure the executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation.
***
Nandipati Tati Reddi Vs. Syed Meera Hussaini and Ors.
The amended provisions to construe the Legislative intentionRule 58(1)(a) of O. 21 of the C.P.C as amended lays down that no claim or objection shall be entertained after the sale of the property attached. 
***
Magunta Mining Cp.Vs. M. Kondaramireddy and Anr, AIR1983AP335
 
Whenever a claim is preferred under O. 21, R. 58 C.P.C. against attachment of immovable properties the fact that the properties are sold or the sale confirmed will not deprive the Court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial Court or the appellate Court (under the amended code) and in the event of the claim being allowed, the sale and the confirmation of sale shall to that extent be treated as a nullity and of no effect, as the Judgment debtor had no title which could pay to the Court auction-purchaser
***
Sannidhi Krishna Murthy and Anr.Vs. Ponipireddy Venkata Rao and Ors,
AIR2010AP79, 2009(6)ALD535, 2009(6)ALT498
"As per proviso (c) of Sub-section (1) of Section 73 of CPC, proceeds of sale need not be rateably distributed among holders of decrees after sale of property."
***
Akasim Bi and others  Vs. T.G. Lakshmayya Thimmayya Setty and others, 1999(6)ALD402, 1999(6)ALT151, Held:
It is seen that under sub-rule (1) of Rule 66 to Order 21 of the Code, the sale proclamation shall be published in the language of the Court. The languages of the executing Court, as has been announced by the Government of A.P. in A.P. Gazette No.32 dated 9-8-1962, (published in G.O. Ms. No.1295 Home (Courts-A), dated 16-7-1962), are -- Telugu, Urdu and Kannada (for Kurnool District). But, the sale proclamation in this case was published in English, which is clearly in violation of the provisions of Order 21, Rule 66 (1) CPC.
***
ADJOURNMENT OF SALE
             As has been held by various High Courts in Krushna Mohan v. Govinda Chandra, MANU/OR/0071/1961 : AIR1961Ori171 , Abdul Rauf v. Mt. Qamrunnissa, (supra) and Babu Ram v. Inamullah, MANU/UP/0348/1926, the Court is bound to specify the date and hour of next adjournment date on which sale is proposed as required under Order 21, Rule 69 CPC.
***
Permit D.Hr to bid
Decree Holder can a petition under Order 21, Rule 72 CPC praying to permit him to bid in Court auction.
***
DOCKET
After disposal of the EP, the result is to be entered in EP register and EP disposal register. The Minutes are to be entered in the Suit register. Entry is to be made in the sale certificate Register. EP result is to be communicated to the Central Nazir, Disrict Court to make entry in the attachment register in Transfer EP
 
NOTE:
1.  If the sale warrant amount is less than sale price Full Satisfaction is to be recorded in the E.P and then EP may be terminated.
 
2. If sale warrant amount is more than the sale price, Part Satisfaction is to be recorded and the E.P is to be closed.

Sale price N.J.Stamps
Rs. 1,000/-
After Rs.500/- for every Rs.500/- or part there of.
Rs. 50/- (@ 5%)
Rs.25/-
(See Rule 278 of  Civil Rule of Practice as to payment of poundage).

Sale certificate:
(See rule 282 of Civil Rule of Practice)
(1)   A certificate of sale of immovable property shall specify as part of the description of the property, the survey number, if any, and the registration or sub-district in which the same is situate.
(2)   All sale certificates of immovable property shall be engrossed on stamp papers of proper value and copies thereof be forwarded to the registering officer or officers under Section 89 of the Registration Act (Act XVI of 1908) within three days for the issue of the certificate.
(3)   The copy sent to the registering officer shall disclose the stamp value of the documents and the registering officers to whom copies of the sale certificates are being sent certificates shall be drawn up without delay and the certificates are being sent within whose jurisdiction any part of the property is situate.
The dispatch number is to be noted on the sale certificate. The sale certificate should be given to the parties as early as possible preferably within one week under proper acknowledgement in the sale certificate register.
***
Patnam Subbalakshmamma Vs. Sunkugari Sreenivasa Reddy and Balsani Ramesh Babu, AIR2011AP298, HELD.
Whenever the property of a judgment-debtor in suit for money decree has brought to sale, he has a right under Rule 89 of Order 21 Code of Civil Procedure to seek annulment of the sale, by making deposit of the decretal amount mentioned in the sale proclamation and a sum equal to 5% of the purchase money, payable to the auction purchaser. In this case, it was further observed that The limitation for such deposit is stipulated under Sub-rule (2) of Rule 92 Code of Civil Procedure, as 60 days from the date of sale.
***
Order 21, rule 90 CPC
C. Ryan Babu S/o. Narasimha Rao
Vs.
B.K.L. Traders rep. by its Proprietor, B. Venkateswarlu, S/o. Venkata Ramanayya and I. Srinivasa Rao S/o. Rama Rao,2010(4)ALD349, 2010(5)ALT217
"If proclamations for sale are conducted without following the provisions of law then it is material to claim for applicant to set aside the sale on the ground for irregularity or fraud."
***
Ch. Krishnaiah S/o. Balaramaiah Vs. Ch. Prasada Rao S/o. Jwala Ramaiah, 2009(6)ALD195, 2009(6)ALT82
"Order XXI Rule 106(4) of CPC enables a party to proceedings to file application under Section 5 of Limitation Act seeking condonation of delay in filing an application to set aside ex parte order passed under Order XXI Rule 106(1) of CPC."
***
E.P.STEPS – MODEL
(E.P For Attachment and sale of Immovable Property. Order 21, Rules 54,64, and 66 of CPC)
EP is filed under Order 21, rule 11 of CPC.(Execution  is filed beyond two years).

 
Heard.
Issue notice to J.Dr under Or.21 Rule 22 of CPC on payment of process
Call on 04-11-2013
(Note: If E.P.is filed below 2 year from date of decree, notice under Order 21, Rule 22 of CPC is not necessary)
 
04-11-2013
[Or.21, rule 22 CPC notice was served to J.Dr]
For counter and Vakalat
Call on  09-11-2013.
 
08-11-2013.
J.Dr filed counter. For Enquiry
Call on 11-11-2013
 
11-11-2013
Heard both sides,
For orders call on 12-11-2013
 
12-11-2013
Order Pronounced in open court
(vide separate order)
In the result, the petition under order 21, rule 22 CPC is allowed.
Issue notice under order 21, rule 54 CPC and attach the E.P.Schedule property , on payment of process. Call on 17-11-2013.
 
15-11-2013
Or.21, rule 54 notice was served on J.Dr. the attachment of E.P. Scheduled property was effected on 15-11-2013.
For counter of J.Dr. call on 21-11-2013.
 
21-11-2013
J.Dr filed counter. For enquiry call on 25-11-2013
 
25-11-2013
Heard both sides,
For orders. Call on 26-11-2013
 
26-11-2013
Order Pronounced in open court
(vide separate order)
In the result, the petition under order 21, rule 54 CPC is allowed.
For Sale Papers and EC. (20 days duration) Call on 16-12-2013.
 
16-12-2013
SP and EC are filed. Check and call on 23-12-2013
 
Checking of Sale Papers and EC:
1.  EC must be for period of 12 years prior to the date of attachment of the immovable property.
2. For example:    23-12-2013
12………………

23-12- 2001
It is the Encumbrance Certificate is to be  filed for the period 23-12-2001  to 23-12-2013.
 
3. If any mortgage and charge or other alienations are found in EC, the sale papers may be returned for clarification.
4. Description of property in EC is to be checked carefully
5. Sale Affidavit by D.Hr is to be filed
6. Draft proclamation is to be filed by D.Hr
7.Cetified copy of 10 (1) Account is to be filed in case of  lands
8. House Tax demand extract is to be filed in case of house
 
At this stage, J.Dr may file counter. If counter is filed by J.Dr, the Court has to  pronounce orders (Speaking Order) on merits after enquiry.
 
23-12-2013
Sale papers and EC are checked and they are in order.
Issue sale notice to J.Dr on payment of process
Call on 30-12-2013              [one week duration]
 
30-12-2013
D.Hr is preset. J.Dr is present
Sale notice is served on J.Dr. For counter
Call on 09-01-2014
 
09-01-2014
D.Hr is preset. J.Dr is present
Counter is not filed. The learned counsel for J.Dr request time for filing counter.
Time extended till 27-01-2014 as finally
Call on 27-01-2014
 
27-01-2014
D.Hr is preset. J.Dr is present
Counter is filed by J.Dr. For enquiry
Call on 03-02-2014
 
03-02-2014
D.Hr is preset. J.Dr is present
On D.Hr’s side P.W.1 is examined; Ex.A.1 to A.3 are marked
Learned counsel for D.Hr reported no further evidence. Hence, D.Hr’s side evidence is closed. For J.Dr’s side evidence
Call on 10-02-2014.
 
10-02-2014
D.Hr is preset. J.Dr is called absent.
The learned counsel for J.Dr requests time for J.Dr’s evidence.
Finally, for J.Dr’s side evidence
Call on 11-02-2014
 
11-02-2014
D.Hr is preset. J.Dr is called absent.
The learned counsel for J.Dr again requests time for J.Dr’s evidence.
On costs of Rs 100/- payable to D.Hr by J.Dr, time extended for J.Dr’s side evidence
Call on 14-02-2014
 
14-02-2014
D.Hr is preset. J.Dr is called absent.
The learned counsel for J.Dr paid costs and memo is filed. The same is recorded. But he requests time for J.Dr’s evidence on the ground that J.Dr went to Hyderabad.
As a last chance, time extended for J.Dr’s side evidence. No further adjournment will be granted for J.Dr.
Call on 17-02-2014
  
17-02-2014
D.Hr is preset. J.Dr is present
R.Ws 1 to 3 are examined. No documents are marked on J.Dr’s side.
The learned counsel for J.Dr reported no further evidence. Hence, J.Dr’s side evidence is closed.
For settlement of terms. Call by 25-03-2014

Sl. No Description of  the land Survey number Extent of land D.Hr’s value Amin
value
J.Dr value SRO value

25-03-2014
 For proclamation and sale on 01-05-2014 (35 days duration)
Publish in Vaartha news  paper (any paper)
 
For Further hearing.   Call by 08-05-2014 (one week duration)

Note:
D.Hr value is to be mentioned as given in the E.P. Schedule.
Amin value is to be mentioned as given in the attachment list
SRO value is to be mentioned to know actual market value
If the E.P. Schedule property is under mortgage, sale is to be ordered subject to mortgage. The steps is : For proclamation and sale on 01-05-2014 subject to mortgage.

01-05-2014
Proclamation was made in the village on  07-04-2014. Publication in Eenadu filed. Sale batta is paid. Sale warrant of Rs-----------------(as mentioned in sale warrant).
Sale held in open court. Sale is knocked in favour Sri Raghava who is highest bidder in the auction. For further hearing call on 08-05-2014.
Note:
1. The duration of period would be 15 days from the date of proclamation in the village and the date of sale.
2. Sale batta is to be paid before 7(seven) days to the date of sale
3. The date of sale and description of the EP Schedule property in the publication should be checked carefully. If any defects mentioned above are found, the EP may be adjourned to further hearing date of steps.
4. If J.Dr files a petition under Order 21, rule 69 CPC, on the date of sale, praying to postponement of sale , the Court may adjourn the sale to some other date within 30 days. If sale is adjourned beyond 30 days, fresh proclamation and publication should be ordered.
5. if there are no sufficient bidders, the sale can be stopped for want of sufficient bidders and then the EP is to be adjourned to the date of further hearing; or if there are sufficient grounds, the EP may be dismissed for non-securing sufficient bidders.
6.in  case of sale is stopped for any one of the above reasons, fresh sale is to be ordered.
7.D.Hr can be permitted to bid in the auction under order 21,Rule72 of CPC (separate petition must be filed by D.Hr). if D.Hr purchased the property, the decree amount may set off under Order 21, rule 72(2) of CPC. Set Off means, EP amount is to be adjusted towards the sale price.
8. If any claim petition is filed under Order 21, rule 58 of CPC before sale, sale need not be stopped on that ground, however, sale should not be confirmed till disposal of  claim petition. Claim petition must be filed before sale. No claim petition  will be entertained after sale.
9. Petition under section 73 of CPC (for rateable distribution) cannot be permitted after sale.
 
08-05-2014:
¼ sale price deposited on ----------------on 01-05-2014. Poundage is also collected.  For confirmation of sale. Call on 02-07-2014 (Clear 60 days duration from date of sale to the date of confirmation of sale)
 
02-07-2014
[Note to be put up for confirmation of sale.  The sale of immovable property was held on 01-05-2014. Sale was knocked down in favour of Sr Raghava for Rs 10,000/-  highest bidder in the auction.  The auction purchaser deposited in 1/4th sale price of Rs.2,500/- on the same day i.e 01-05-2014. An amount of Rs. 345/- was collected towards poundage out of the EP sale price of Rs.2,500/-. 3/4th sale proceeds of Rs.7,500/- and Rs.500/- towards sale certificate and stamp count (i.e totally Rs.8,000/-) was deposited on 12-05-2014 and it was in time. No claim petitions, or stay petition, or petition to set aside sale etc are filed nor pending in the Court. As per sale warrant, D.Hr is entitled Rs. 5,600/- and so the sale may be confirmed and Full satisfaction may be recorded and Thereby EP may be terminated.
As charge for Rs 500/- sanction --------------- in favour of  Sub-Treasury Officer (STO), ------------ for non-judicial stamps for sale certificate.]
 
Sale is confirmed. Full satisfaction is recorded. E.P is terminated.  E.P terms are noted. Attachment is raised. Issue cheque for Rs.500/- in favour of STO, --------- for non-judicial stamp
 
Conclusion:
In our country, despite the provisions of CPC are applicable in all civil cases, different enactments provide the ''Modus Operandi'' of execution of the rulings rendered thereunder. I hope this article is useful to newly recruited Judicial Officers, lawyers, law students and others who seek information about execution proceedings.

-x--x--x--x--x--x--x-
# This was observed in Akasim Bi and others Vs. T.G. Lakshmayya Thimmayya Setty and others, 1999(6)ALD402, 1999(6)ALT151
# (This is an example to create some awareness on EP Steps)




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