The mode of selling is set out under Order 22. It states sale can only be conducted by public sale, by an officer (auctioneer) appointed by the court. A public notice to advertise the intended sale must be posted and the court can direct the manner in which the sale will be directed in giving the order. Usually public notice and advertisements should be done by decree holder and after the judgment debtor have been notified. Notice should state date and time and place of sale, and usually the amount that is intended to be recovered or the encumbrance of the property, and any other information that is material as directed by the court.
The notice should be at least 30 days in the case of immovable property and 15 days in the case of movable property. These time periods can be changed if the goods are perishable or subject to decay.
The court still has the discretion to adjourn the sale and usually the officers in charge of the sale will be served with notice. If adjourned by more than 7 days a fresh public notice must be given.
There are many reasons for adjournment.
Once the property is sold the proceeds of sale are paid to the decree holder or his advocate and if there is any balance it is paid to the JD. Every sale is usually conducted by an officer appointed by court by way of public auction. The court attaches a public notice of intended sale to be carried in such a manner as it may direct and the court will give notice to decree holder and JD indicating the date, the time and the place of intended sale by auction and it should also specify as accurately as possible the property to be sold, any encumbrance to which the property is subject, amount to be recovered after the sale and any other matter which the court considers material for purchaser to know in order to assess the nature and value of the property.
Except with the consent in writing of the JD, the sale will not take place until after expiry of at least 30 days in the case of immoveable property and at least 15 days in the case of moveable property. This period is calculated from the date in which the copies of the notices are affixed on the court notices. Where the property is subject to speedy and natural decay (inherent vice) then the officer tending to the auction may sell it at once. If it is livestock the court may make arrangements for its custody and maintenance i.e. the court directs that it may be held at the nearest prison since there are fields and free labour.
The court has a discretion to adjourn the sale to a specified date and hour and an officer conducting any such sale may also adjourn it giving the reasons for adjournment. If the sale is to be conducted in presence of the court it cannot be adjourned without the leave of court. if adjourned for more than 7 days a fresh date must be given. Every sale shall be stopped if before the sale is completed
1. The outstanding debt and cost has been paid by the debtor to the presiding officer
2. Proof is given to the officer that the amount of debt and cost have been paid to the court which ordered the sale i.e. by production of a receipt.
The Decree Holder must not participate at the auction without the permission of the court and if he participates directly or through another person, the court may set aside that sale and the court may set aside the sale if the JD applies or if any other person whose interests have been affected by the sale applies to the court. if it turns out that there was improper sale, the cost of that sale and proceedings will be borne by the decree holder. If after auctioning the proceeds are not enough to satisfy the decree, then the decree holder can look for any other property that the JD may have if the warrants are still valid, one need not make a fresh application.
Labels: Civil Procedure