FINANCIAL COMMISSIONER’S
STANDING ORDER NO. 64
The Attachment and Sale of Agricultural Produce
And of Land
Original Issue dated 8th September, 1910
First Reprint, dated 25th August, 1921
Second Reprint, dated 24th November, 1933
Third Reprint, dated 26th September, 1938
Revised on 4th March, 1982
PRELIMINARY
The
law dealing with the attachment and sale of agricultural produce and of land
will be found in the Code of Civil Procedure (V of 1908), in the Punjab Land
Revenue Act (XVII of 1887), in the Punjab Tenancy Act (XVI of 1887) and the
Punjab Debtor’s Protection Act (II of 1936).
The Code of Civil Procedure is a general Act and its provisions will be
binding on all civil courts except in so far as they are saved by the
provisions of local or special Acts.
This is laid down in section 4 of the Code. The special Acts, the provisions of which have to be considered,
are the Land Revenue, Tenancy and Debtors Protection Acts above cited, and it
will be necessary to explain how far the general law is modified by them. The main sections of which reference will be
made are the following: -
Civil
Procedure Code. –Sections 60, 61 and the relevant rules of Order XXI.
Punjab
Tenancy Act. –Section 88
Punjab
Land Revenue Act. –Sections 70 and 141.
Punjab
Debtors Protection Act. –Section 10.
A. –Execution of decrees against the agricultural
produce and other moveable property of agriculturists
1. The following instructions have been
issued by the High Court in Rules and Orders, Volume I, Chapter 12. – N. --
(1) in executing decrees against
agriculturists it is to be borne in mind that clause (p) of the proviso to
section 60(1) of the Code of Civil Procedure exempts from liability to
attachment or sale of any movable property belonging to a judgment-debtor, who
is liable for the payment of land revenue which under the revenue law, is
exempt from sale for the recovery of an arrear of revenue. Sub-section (2) of
section 70 of the Punjab Land Revenue Act lays down what property is not liable
to attachment and sale in the recovery of an arrear of revenue. Reading the provision of the Code with the
revenue law alluded to, it will be seen that the following movable property is,
in the case of agriculturists paying revenue, exempted from liability to
attachment and sale in execution of decree, namely:-
(a) the necessary wearing apparel, cooking
vessels, beds and bedding of the judgment-debtor his wife and children and such
personal ornaments, as in accordance with religious usage, cannot be parted
with by any woman [Section 60(1) (a) of the Code];
(b) implements of husbandry, and such cattle
and seed-grain as may, in the opinion of Court, be necessary to enable him to earn
his livelihood as an agriculturist, and such portion of agricultural produce or
of any class of agricultural produce as may have been declared by the State
Government to be free from liability under section 61 Section 60(1) (b)];
(c) so much of the produce of the land as
the Collector thinks necessary for seed-grain and the substance, until the
harvest next following of the judgment-debtor, his family and cattle exempted
under head (b) section 70 of the Punjab Land Revenue Act read with section 88
of the Punjab Tenancy Act and section 60(1) (p) of the Code of Civil Procedure.
Section 60(1) (c) of the Code
further exempts, from attachment and sale, houses and other buildings (with the
materials and the sites thereof and the land immediately appurtenant thereto
and necessary for their enjoyment) belonging to an agriculturist or a domestic
servant and occupied by him.
(2) The movable property of an agriculturist
who is liable for the payment of land revenue may be protected in three several
ways, namely, by he orders of the State Government made under section 61 of the
Code, by the opinion 60 (1) (p) of the Code, and by the opinion of the Court
under section 60(1) (b) of the Code.
(2-A) In exercise of the powers conferred by
Section 61 of the Civil Procedure Code the Punjab Government has declared that
in the case of agriculturists and judgment-debtor’s entire fodder crops,
including grain, oats, chari, maize and guara, one-third of 20 maunds, (8
quintals) whichever is greater of food-grains, and one-third of all other crops
shall, subject to the provisions of clauses (b) and (p) of sub-section (1) of
section 60 of the Civil Procedure Code and of the proviso to section 70 of the
Land Revenue Act, be exempted from liability by attachment or sale in the
execution of decree, for the purpose of providing, until the next harvest, for
the due cultivation of the land and for the supports of the judgment-debtor and
his family. (Punjab Government, Revenue
Department Notification No. 359 –R. (S.), dated 15th June, 1938.)
(3) As to the mode of attaching the movable
property of agriculturists, section 141 of the Punjab Land Revenue Act must be
read with Order XXI, rules 43 to 45 of the Code of Civil Procedure, and the
attachment or sale of the produce of any land must be effected by an under
addressed by the Civil Court to the Collector on such Revenue Officer as the Collector
may appoint in this behalf, and the execution of the order must be left to the
Collector or such officer. The
Collector, is however, required by law to carry out the execution in accordance
with the provisions of the law applicable to the Court issuing the order i.e.
Order XXI, rules 44 and 45, or such rules as may be framed under section 141 of
the Punjab Land Revenue Act.
(4) It is thus the duty of the civil court
executing a decree against the movable property of an agriculturist to decide
what property, including cattle is to be exempted from attachment or sale under
clauses (a) and (b) of the proviso to section 60 (1) of the code of Civil
Procedure and to attach and sell such movable property (other than produce of
the land) as may not be so exempted.
But the attachment and sale of agricultural produce must be effected in
the manner described in Order XXI, rules 41, 45, 74, and 75. These rules prescribe the procedure for the
attachment and sale of agricultural produce, and must be carefully studied and
observed by executing Courts. The
attachment and sale will be carried out by the Collector, subject to the
provisions of the Code, as well as to any rules that may be made consistent
therewith under section 141 of the Punjab Land Revenue Act.
(5) Deleted.
2. It would appear from the above that
when a civil court addresses an order of attachment of agricultural produce to
a Collector, it should instruct the Collector to leave unattached so much of
the produce of the land as the Collector, in accordance with the law, deems
necessary, but if the court omits to do so, it would still seem to be the duty
of the Collector or other revenue officer to make the necessary exemption, for
the Collector equally with the court is bound to carry out the provisions of
the law and is not excused from so during by a failure on the part of the
court.
3. In carrying out the sale of
agricultural produce the Collector will act in accordance with the instructions
of the High Court given in paragraph 1 above and with the following rules under
the Punjab Land Revenue Act: -
(47) “When the produce of any land has been
attached in pursuance of an order for its attachment and sale addressed to the
Collector by a civil or criminal court, the Collector shall direct that an
appraisement of the attached produce be made by a revenue officer or by the
Kanungo of the circle in which the land is situated. The produce shall not be sold until the appraisement has been
approved by the Collector, or by a revenue officer appointed in the behalf by
the Collector.
(48) Sales of the produce of land shall be made
by a revenue officer or by the Field Kanungo of the circle in which the land is
situated. When the sale is made by the
Kanungo it shall be carried out in the presence of a village headman appointed
in that behalf by a revenue officer.
The Field Kanungo shall be entitled to a commission of 5
per cent on the sale proceeds.
(49) When produce sold by a kanungo consists of
movable property, the purchase-money shall not be received, nor shall the sale
become absolute until the sale has been confirmed by the Collector or by a
revenue officer named by the Collector.
4. After execution of orders of attachment and sale the
Collector shall forthwith report to the court the action taken by him.
5. The investigation and decision of
claims and objections to the attachment of sale of agricultural produce is the
duty of the civil court and not of the Collector.
6. Standing crops and trees are exempted
from attachment or sale by section 10 of the Punjab Debtors’ Protection Act as
under:-
(i) standing crops, other than cotton and
sugarcane are not liable to attachment or sale in the execution of a decree;
(ii) standing trees apart from the land on
which they stand, are not liable to sale in the execution of a decree or an
order of a court;
(iii) such portion of the judgment-debtor’s
land, not exceeding fifty percentum thereof, shall not be liable to attachment
or sale in the execution of a decree for the payment of money as in the opinion
of the court, having regard to the judgment-debtor’s income from all sources
except such income as is dependant on the will of another person, is sufficient
to provide for the maintenance of the judgment-debtor and the members of his
family who are dependant on him.
B-Execution
of decrees by the attachment and sale or temporary alteration of revenue paying
or revenue free lands.
7. The following general instructions have
been issued by the High Court in Rules and Orders, Volume I, Chapter 12-M,
paragraphs 1 to 7:-
(1) In dealing with applications for the
execution of decrees by the sale or temporary alterations of land, the
provisions of section 141 of the Punjab Land Revenue Act and the Debtors’
Protection Act should not be overlooked.
It should be observed that land which has been built upon ceases to be
land within the meaning of section 141 of the Punjab Land Revenue Act, not
withstanding the fact that it is assessed to land revenue (See I.L.R.
1946 Lahore 52, A.I.R. 1944 Lahore 455).
(2) It should be borne in mind that the powers
of the Civil Courts to deal with objections under section 47, Civil Procedure
Code, or Order XXI, rule 58, as amended by the Punjab High Court, are the same
irrespective of whether the objections are received by the Court direct or
through the Collector.
(3) Objections under section 9 of the
Debtors’ Protection Act are to be decided by the Civil Court and not the
Collector. (A.I.R. 1941 Lahore 225).
(4) In case of temporary alienations which are not governed by the Punjab Debtors’
Protection Act, the Civil Court may seek the Collector’s advice.
(5) Civil Courts should submit quarterly
returns in Form C printed in Part A-V, High Court Rules and Orders, Volume
VI-A, under the heading “4 Returns relating to execution of decree in which the
Collector is consulted”, in all cases in which the Collector’s advice has been
sought under rule 4 above or an order is sent to the Collector under section
141 of the Punjab Land Revenue Act but execution of the decree remains in the
hands of the Civil Court.
(6) Forms A and B in the aforesaid Part of
Volume VI-A were drawn up by the judges with the concurrence of the Financial
Commissioners; for quarterly statements which the Collectors are required to
submit to District Judge in respect of execution proceedings transferred under
section 141 of the Punjab Land Revenue Act.
(7) In cases where the decree is one for the
recovery of money specifically charged on the land ordered to be sold, the
warrant of sale has to be issued by the Civil Court. In this connection
attention is invited to section 141 of the Punjab Land Revenue Act, 1887,
according to which orders for sale of land have to be addressed to the
Collector or such revenue officer as the Collector may appoint. The warrants
for sale in such cases may, therefore, after arrangement with the Collector, be
sent direct to the Tehsildar or such other revenue officer, as the Collector
may appoint, who will return them after execution to the Court concerned
through the Collector. Duplicate copies
of warrants for sale should also be sent direct to the Collector for
information.
8. Deleted.
9. Deleted.
10. Under
section 60(1) (c), Civil Procedure Code, the houses and other buildings with
the materials and the sites thereof and the land immediately appurtenant
thereto and necessary for their enjoyment, belonging to an agriculturist or a
labourer or a domestic servant and occupied by him, are exempt from attachment
and sale.
11. On
receipt of orders issued by a civil court for the attachment, sale or delivery
of any land or interest in land the Collector is bound to execute them in
accordance with the law applicable to the court issuing them, i.e. in
accordance with the Code of Civil Procedure, and also in accordance with any
rules consistent with the Code made by the financial Commissioner under the
powers conferred by section 141, Punjab Land Revenue Act.
12. The
method of attachment is given in rule 54 Order XXI of the Civil Procedure Code.
The following instructions have been
laid down by the High Court in the Rules and Orders, Volume I, Chapter 12-H:-
“(4) The attention of all civil courts is
drawn to the necessity of making it a point to scrutinize the service of
warrants of attachment before they take further action with regard to the sale
or temporary alienation of the property attached. The attachment of land and houses requires particular care and
the court should thoroughly satisfy itself that all the formalities, necessary
for a legal attachment, have been complied with. Failure to comply with these
legal formalities may constitute material irregularity, within the meaning of
Order XXI, rule 90, Code of Civil Procedure and may cause very serious trouble
and loss to the parties later on. All
courts will therefore require the reader to record a note under the attachment
order on the file itself, that the specific formalities, required by law in the
case, have been actually complied with.
The presiding officer will carefully scrutinize such note and initial in
token of its correctness.
(5) Where the order is for the attachment
of land, the warrant should, in accordance with the provisions of section 141
of the Punjab Land Revenue Act, be addressed to the Collector, and be sent to
him for execution, along with necessary copies of the prohibitory order. The Collector and his office will then be
responsible for executing it in accordance with the specified legal
formalities, and to affix the necessary prohibitory orders, etc. The Collector will return the warrant to the
court concerned when it has been duly executed, with an endorsement under his
signature certifying that all the legal formalities required have actually been
complied with and the court will thereafter proceed as directed in paragraph
(4) above”.
13. It is the duty of the court to investigate and decide any
claims and objections to the attachment; this is not the function of the
Collector.
14. Deleted.
15. Deleted.
15A. Deductions on account of expenses to be
made from sale proceeds. (i) Deductions at the following rates shall be made from the proceeds
of sales, viz:-at
the rate of one rupee out of every one hundred rupees for the first two hundred
rupees; at the rate of fifty paise out of every hundred rupees of the proceeds
in excess of two hundred rupees, and up to one thousand rupees;
(ii) All
expenses incurred in the conduct of sales shall be paid out of such deductions,
and the balance credited to Government.
(iii) No
commission on the proceeds of sales conducted under these rules shall be paid
to any officer of the court.
16 to 19. Deleted.
C –Delivery of possession
20. The procedure for the delivery of possession shall
be in accordance with rules 95 and 96, Order XXI, of the Civil Procedure Code.
21. The following special rule, under section 141 of the Land Revenue
Act, is also binding on Revenue Officers -
50. When an order of the
civil court is sent to the Collector for the execution of a decree for the
possession of land, the Collector shall give possession to the decree-holder on
the date specified in the decree or in the directions issued by the civil court
executing the decree. If no date is specified in the decree or by the civil
court and the land, of which possession is to be given, is in the cultivating
possession of the judgment-debtor, the Collector shall at once refer the civil
court for instructions as to whether or not he is to delay execution until any
crop, which may have been sown by the judgment-debtor and is standing on the
land, has removed.
22. The
following are the instructions issued for the guidance of revenue officers in
proceeding under the above rule:-
(I) Orders
or warrants for the delivery of possession of land-
(a) will
specify whether delivery should take place at once or after some late specified
date;
(b) when
necessary, provide for the maintenance of the cultivating possession of any
tenant or sub-tenant whose occupation of the land is not affected by the decree
or order under execution.
(II) when
possession has to be delivered on execution of an ex-parte decree the Tehsildar
should depute the Field Kanungo to deliver possession. In any other case the Tehsildar may direct
that possession shall be delivered by the Patwari.
________________________________________________________________________
*Compare Land Revenue Rule 48
quoted in paragraph 3 of this Standing Order.
(III) The
Patwari of Field Kanungo shall take such steps as are practicable for procuring
the attendance of the judgment-debtor and of the persons (if any) other than
the parties to the case, recorded as having rights in the lands, or of some
near relation of the judgment-debtor or of such other persons.
(IV) Delivery
of possession should be made in the presence of one or more Lambardars and of
the owners of at least two holdings near the land of which possession is
delivered, and when practicable, of other witnesses.
(V) (i) Delivery
of possession should, except in the case referred to in rule VII below,
ordinarily be made by the decree-holders or other person to be put in
possession walking round the boundary of the land in the presence of the
witnesses mentioned in rule IV above.
(ii) when the
decree-holder or such other person is to be put in cultivating possession of
the land he should put in his plough, unless a crop is standing on the land or
for some other reason this cannot be done, if however, any other person is
entitled to occupy the land notwithstanding the decree, a notice in writing
containing the substance of decree should be served on the occupant by the
Patwari or Field Kanungo.
(VI) When at
the time of delivery of possession the judgment-debtor to the ejected is
absent, or any other person considered by the official delivering possession to
be interested in the case is absent and not represented by a near relative, the
delivery should also be proclaimed by beat of drum in the village and on the
land.
(VII) The
instructions contained in rules (IV), (V), (VI) above can of course only be
applied to those cases in which physical possession is to be given. If, as in the case of a decree for the
possession of a share of undivided property, only symbolical possession is to
be given, the procedure indicated in rule 36,
Order XXI, of the Civil Procedure Code should be followed, even if this
is not specified in the decree or order, viz-
(a) A copy of
the warrant or order shall be affixed in some conspicuous place on the
property;
(b) A notice
in writing containing the substance of the decree should be served on such of
the co-sharers as are present;
(c) If none
are present, the delivery should also be proclaimed on the land by beat of
drum.
(VIII) The Patwari
or Field Kanungo should report the delivery to his official superior, noting-
(1) the
action taken to procure the attendance of the judgment-debtor to be ejected and
others;
(2) the
persons present at the time of delivery;
(3) the mode
of delivery.
When attachment is made
the Patwari should not the facts in the remarks column of the Jamabandi as well as in the roznamcha
waqiyati.
(IX) The report
so made should be signed or thumb-marketed by the parties present, by other
persons interested (if any) or their near relatives and by the witnesses.