The attachment and sale of agricultural produce and land

Original Issue dated 8^th September, 1910

First Reprint, dated 25^th August, 1921

Second Reprint, dated 24^th November, 1933

Third Reprint, dated 26^th September, 1938

Revised on 4^th 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.

1. –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 15^th 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.