Sale As An Execution of Certificate Under The Public Demands Recovery Act 1913

Assignment: LLB306 Law of Public Demands Recovery
Reg. No.: 2017-

Name: Nuruzzaman Roll: 39 Section:
417378
Q. Write a critical analysis on the legal procedure of sale as a means of execution of a

certificate. (Word limit: 1000, includes footnotes)
Introduction: Sale is the one of the outstanding modes of execution of a certificate.1 Where
certificate is filed and notice duly served to the certificate-debtor in the prescribed manner and if
the certificate-debtor fails to realize the amount of the certificate within the specified time, the
certificate-officer may at any time direct an attachment2 of the whole or any part of such movable
property by means of sale. The legal procedure of sale as a means of execution of certificate is
analyzed in light of statutory provisions and judgments given by our Apex Court below.
When Sale Can Be Directed: Section 14(a) of The Public Demands Recovery Act 1913
signifies sale as a mode of execution of certificate. The certificate-officer or any person
empowered by the certificate-officer may at any time proceed for sale of the certificate-debtor’s
property upon failure to realize the amount due.
When Sale Becomes Absolute: When there is no application for setting aside sale under Section
22, 23, or 24 or such application is made and disallowed, the Certificate-officer shall make an
order confirming the sale, and thereupon the sale shall become absolute.3
Proclamation of Sale: Rule 464 deals with proclamation of sale. Where any movable or
immovable property exceeding forty Taka in value, is ordered to be sold in public auction, the
certificate-officer cause a proclamation. If the value of movable property is below forty Taka,
then the proclamation is not mandatory. In respect of immovable property, the proclamation is
mandatory. Such proclamation to be gazetted.
Purchaser’s Protected Right: It is held in the case of Golam Hafez Ali Miah v Khadem Ali
Miah,5 any property of the certificate-debtor is sold in execution of certificate, it is only the right,
title and interest of the certificate-debtor that will pass to the purchaser by the sale. The
purchaser acquires the paramount title upon purchasing the certificate-debtor’s property. The
tenure or holding will pass to the purchaser with right to annul the encumbrances. The section 20
empowers the purchaser to hold the property upon purchase. As per the section, the purchaser’s
right, title, and interest shall be vested in him from the time when the property is sold, not from
the time when sale is absolute.
1
The Public Demands Recovery Act 1913, s 14(a), as per.
2
“The act or process of taking, apprehending, or seizing persons or property, by virtue of a writ, summons, or
other judicial order.” Black’s Law Dictionary (9th edition).
3
The Public Demands Recovery Act 1913, s 25(1), as per.
4
The Public Demands Recovery Act 1913, Schedule II.
5
29 DLR (SC) 311.
Sale of Movable Property: As per the rule 45 sales of movable property not exceeding forty
Taka in value shall be held on the spot. Such sales necessarily held by peons when they are
attaching officer. In case of sales of movable property greater in value shall take place only after
issue of proclamation.
Sale of Immovable Property:

-As per the rule 46 when a tenure or holding has been advertised for sale at a fixed rate in
execution of a certificate it will be sold subject to the notified and registered encumbrances.
-As per the rule 63 if the certificate-holder desires that the tenure or holding to be sold with
power to avoid all encumbrances, after making a fresh proclamation the sale shall be made.
-As per the rule 64 when any occupancy holding is advertised under the rule 46 for sale, it shall
be put up to auction and sold with power to avoid all encumbrances.
Postponement of Sale: On the application of certificate-debtor under the rule 66, if the
certificate-officer is satisfied that the amount of the certificate may be raised by the mortgage or
lease or private sale of such property or any immovable property of certificate-debtor, he may
postpone the sale to raise the amount.
Setting Aside Sale: If immovable property has been sold in execution of a certificate, an
application may be made to the Certificate-officer shall make an order setting aside the sale on
the grounds of…
- On deposit6
- Notice was not served under section 77
- A material irregularity in the certificate-proceedings or in publishing or conducting the sale.8
There must be direct proof of substantial injury occasioned by the alleged irregularity.9
- Certificate-debtor had no saleable interest or that property did not exist.10
Disposal of Proceeds of Execution: After the realization of the amount of the certificate by sale
or otherwise in execution of certificate, if there remains any surplus balance shall be paid to the
certificate-debtor.11
Resistance to Purchaser after Sale: If the purchaser of any immovable property sold in
execution of a certificate is resisted or obstructed by any person in obtaining possession of the
property, he may apply to the Certificate-officer to recover the possession.12 If the Certificate-
officer is satisfied upon investigation that the resistance or obstruction has occurred without just
cause, he shall direct that the applicant be put into possession. The person who resisted to be
detained in the civil prison for a term which may extend to 30 days.13 But the person who resisted
in good faith claiming the possession of the property on his own, then the Certificate-officer shall
6
As per the Section 22
7
8
Ibid.
9
Akmal Khan v Amaresh Chandra Roy, 18 DLR 502
10
11
12
13
make an order dismissing the application.
Concluding Remarks: As the primary purpose of the law is to the recovery of public demands,
sale is not the ultimate purpose in certificate-proceeding. Sale is inevitable, in execution of
certificate, when the certificate-debtor is unable to realize the amount of the certificate.
----------------------------------------------------------

Sale As An Execution of Certificate Under The Public Demands Recovery Act 1913

Uploaded by

Copyright:

Available Formats

Sale As An Execution of Certificate Under The Public Demands Recovery Act 1913

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sale As An Execution of Certificate Under The Public Demands Recovery Act 1913

Uploaded by

Copyright:

Available Formats

Assignment: LLB306 Law of Public Demands Recovery

Reg. No.: 2017-

Q. Write a critical analysis on the legal procedure of sale as a means of execution of a

Sale of Immovable Property:

make an order dismissing the application.

You might also like