PART I Preliminary
PART II -Filing, service and effect of certificates and hearing of objections thereto
PART III Execution of Certificates
PART IV Reference to Civil Court
PART VI Supplemental Provisions
Bengal Public Demand Recovery Act 1913
Act to consolidate and amend the law relating to the recovery of public demands in Bengal Whereas it is expedient to consolidate and amend the law relating to the recovery of public demands in Bengal;
PART I Preliminary
1. Short title, commencement and extent.—(1) This Act may be called the Bengal Public Demands Recovery Act, 1913;
(2) It shall come into force on such date as the State Government may appoint by notification in the Official Gazette; and
(3) It extends to the whole of West Bengal.
3. Definitions.—In this Act, unless there is anything repugnant in the subject or context—
(a1) “Calcutta” means the area comprised within the local limits for the time being of the ordinary original civil jurisdiction of the High Court at Calcutta;
(1) “Certificate-debtor” means the person named as debtor in a certificate filed under this Act, and includes any person whose name is substituted or added as debtor by the Certificate Officer;
(2) “Certificate-holder” means the Government or person in whose favour a certificate has been filed under this Act, and includes any person whose name is” substituted or added as creditor by the Certificate Officer;
(3) “Certificate Officer” means a Collector, a Sub-divisional Officer, and any officer, appointed by a Collector, with the sanction of the Commissioner to perform the functions of a Certificate Officer under this Act;
(3a) “Collector” means the chief officer-in-charge of the revenue administration of a district and includes an Additional District Magistrate appointed under sub-section (2) of section 10 of the Code of Criminal Procedure, 1898 (Act V of 1898);
Explanation.—For the purposes of this Act, the district of 24-Parganas shall be deemed to include Calcutta;
(4) “movable property” includes growing crops;
(5) “prescribed” means prescribed by rules;
(6) “public demand” means any arrear or money mentioned or referred to in Schedule I, and includes any interest which may, by law, be chargeable thereon up to
the dale on which a certificate is signed under Part II; and
(7) “rules” means rules and forms contained in Schedule II or made under section 39.
NOTE-1 Section 3(3) of the Public Demands Recovery Act, 1913, “Certificate Officer” means, apart from a Collector or Sub-divisional Officer, any officer appointed to perform the functions of a certificate officer under the Act. Under Article 300(1) of the Constitution, the Government of a State is to sue or to be sued in the name of the State. Certificate can be issued under Rule 46 of the Bengal Public Demands Recovery Act, 1913.
PART II -Filing, service and effect of certificates and hearing of objections thereto
4. Filing of certificate for public demand payable to Collector.—When the Certificate Officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed form, stating that the demand is due, and shall cause the certificate to be filed in his office.
5. Requisition for the certificate in other cases.—(1) When any public demand payable to any person other than the Collector is due, such person may send to the Certificate Officer a written requisition in the prescribed form:
Provided that no action shall be taken under this Act on a requisition made by a land mortgage bank registered or deemed to be registered under the Bengal Co-operative Societies Act, 1940 (Ben. Act XXI of 1940), or an assignee of such bank, unless the requisition be countersigned by the Registrar of Cooperative Societies, West Bengal.
(2) Every such requisition shall be signed and verified in the prescribed manner, and, except in such cases as may be prescribed, shall be chargeable with the fee of the amount which would be payable under the Court-fees Act, 1870 (VII of 1870), in respect of a plaint, for the recovery of a sum of money equal to that stated in the requisition as being due.
NOTES– The provisions of Section 5, Bengal Public Demands Recovery Act, 1913, Sub-section (1) of which enacts that when any public demand payable to any person other than the Collector is due, such person may send to the certificate officer a written requisition in the prescribed form. This certificate officer may thereupon make a certificate under section 6.
NOTE-2 Let us take an example where the person (other than the Collector to whom the public demand is to be paid resides in district A; the person from whom it is due resides in district B and most of his property is in district C; the payment is due to be made in district D and it is on account of property situate in district E. Which of these districts is the one whose certificate officer has jurisdiction to make the necessary certificate? It cannot be that unless all these districts are identical, the provisions of the Act are inapplicable; for Section 12, makes specific provision for transfer of certificates for execution from one certificate officer to another, a provision which would be wholly unnecessary if all the districts were identical. How then is the jurisdiction to be determined if all the districts are not identical? The only reasonable interpretation of Section 5 seems to me to be that the certificate officer referred to therein is the certificate officer of the place where the public demand is payable; for it is there that it is a demand at all. The jurisdiction of the certificate officer under Section 5 does not therefore depend upon the situation of the property in respect of which the demand arises, but upon the place where the money is demandable or payable. If this place is within the district where the certificate officer holds office, the certificate officer has jurisdiction to receive the requisition and to make a certificate. In this connexion, it is relevant to refer to the provisions of the Revenue Recovery Act, 1890 (Central Act, 1 of 1890), which is a statute still in force throughout British India and is closely allied to the Bengal Public Demands Recovery Act, 1913. Sections 3 and 5, Revenue Recovery Act, 1890, run:
3. (1) Where an arrear of land revenue, or a sum recoverable as an arrear of land revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of that other district a certificate in the form as nearly as may be of the schedule stating, (a) the name of the defaulter and such other particulars as may be necessary for his identification, and (b) the amount payable by him and the account on which it is due.
(2) The certificate shall be signed by the Collector making it (or by any officer to whom such Collector may, by order in writing, delegate this duty), and, save as otherwise provided by this Act, shall be conclusive proof of the matters therein stated.
(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land revenue which had accrued in his own district.
…
(5) Where any sum is recoverable as an arrear of land revenue by any public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which has accrued in his own district, and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself.
It will be seen from Section 5 that in the case of sums due to officers other than the Collector, it is the Collector of the district in which the office of that officer is situate who can make the certificate; in other words, it is the Collector of the district in which the sums are payable who has jurisdiction to receive the requisition for, and to make, the necessary certificate. The Bengal Public Demands Recovery Act, 1913, is in force throughout Bengal, but not outside; if there is a public demand due in Bengal from a defaulter who resides or has property outside Bengal, the assistance of Sections 3 and 5, Revenue Recovery Act, 1890, (which is a Central Act in force throughout British India) may have to be invoked.
6. Filing of certificate on requisition.—On receipt of any such requisition, the Certificate Officer, if he is satisfied that the demand is recoverable and that recovery by suit is not barred by law, may sign a certificate, in the prescribed form, stating that the demand is due; and shall include in the certificate the fee (if any) paid under section 5, sub-section (2); and shall cause the certificate to be filed in his office.
7. Service of notice and copy of certificate on certificate-debtor.—When a certificate has been filed in the office of a Certificate Officer under section 4 or section 6, he shall cause to be served upon the certificate-debtor, in the prescribed manner, a notice in the prescribed form and a copy of the certificate.
NOTE-1: The true principle is that no certificate filed under Section 4 or Section 6 of the Bengal Public Demands Recovery Act, 1913 and no notice issued under Section 7 of that Act should be pronounced to be invalid merely on the ground of a defect, error or irregularity in the form thereof. The State Legislature has now intervened in the matter and by the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961 (West Bengal Act XI of 1961) passed on April 28, 1961, provided that notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 or in the rules made or forms prescribed thereunder no certificate filed under Section 4 or Section 6 of the Act and no notice served under Section 7 of the Act shall be deemed to be invalid or shall be called in question merely on the ground of defect, error or irregularity in the form thereof. The certificates filed in the instant case cannot therefore be pronounced to be invalid merely on the ground that they are not in the prescribed form nor can the notices issued under Section 7 be pronounced to be invalid merely on the ground that they were not signed on and do not bear the date on which the certificates were filed.
Section 2 of Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961 runs as follows :–
“Notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as the said Act) or in the rules made or forms prescribed thereunder, no certificate filed under Section 4 or Section 6 of the said Act and no notice served under Section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect, error or irregularity in the form thereof.
NOTE-2: There is a prescribed Form for this notice and the Form (Form No. 3) has been prescribed under Rule 84 of the Rules framed under the Public Demands Recovery Act. According to this Form the notice would read as follows:–
“You are hereby informed that a certificate against you for Rs. …………… due from you on account of ……………has this day been filed in my office ………”
and ends thus
Dated this …… day of…………19
A. B.
Certificate Officer.”
8. Effect of service of notice of certificate.—From and after the service of’ notice of any certificate under section 7 upon a certificate-debtor,—
(a) any private transfer or delivery of any of his immovable property situated in the district in which the certificate is filed, or of any interest in any such property, shall be void against any claim enforceable in execution of the certificate; and
(b) the amount due from time to time in respect of the certificate shall be a charge upon the immovable property of the certificate-debtor, wherever situated, to which every other charge created subsequently to the service of the said notice shall be postponed.
NOTE: On April 28, 1961, The Bengal Public Demands Recovery (Validation of Certificates and Notices) Act 1961 (West Bengal Act XI of 1961), passed by the West Bengal Legislature came into force. It will be convenient to set out the provisions of the Act:
West Bengal Act XI of 1961.
An Act to validate certain certificates filed and notices served under the Bengal Public Demands Recovery Act, 1913.
“Whereas it is expedient to validate certain certificates filed and notices served under the Bengal Public Demands Recovery Act, 1913 (Ben. Act III of 1913).
It is hereby enacted in the Twelfth year of the Republic of India, by the Legislature of West Bengal, as follows :–
1. Short title.– This Act may be called the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961.
2. Validation of Certificates filed under Sections 4 and 6 and notices served under Section 7 of Ben. Act III of 1913.-
Notwithstanding any decision of any Court and notwithstanding anything to the contrary contained in the Bengal Public Demands Recovery Act, 1913 (hereinafter referred to as the said Act) or in the rules made or forms prescribed thereunder, no certificate filed under Section 4 or Section 6 of the said Act and no notice served under Section 7 of the said Act shall be deemed to be invalid or shall be called in question merely on the ground of any defect, error or irregularity in the form thereof. The object for promulgation of the said Act, as stated in its Objects and Reasons are as follows:
“The High Court of Calcutta has invalidated certain certificate proceedings on the ground of a defect in the certificate and notice forms. Objections are being filed against the large number of pending certificates challenging their validity on the basis of the decision of the High Court. It is, therefore, necessary to validate such certificate proceedings.” (Vide Statement of Objects and Reasons printed in the Calcutta Gazette, Extraordinary, Part IVA, dated February 17, 1961).
9. Filing of petition denying liability.—(1 )The certificate-debtor may, within thirty days from the service of the notice required by section 7, or, where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed, or to the Certificate Officer who is executing the certificate, a petition, in the prescribed form, signed and verified in the prescribed manner, denying his liability, in whole or in part.
(2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal.
10. Hearing and determining of such petition—The Certificate Officer in whose office the original certificate is filed shall hear the petition, take evidence (if necessary), and determine whether the certificate-debtor is liable for the whole or any part of the amount for which the certificate was signed; and may set aside, modify the certificate accordingly.
Provided that, if the Certificate Officer is not the Collector, and considers that the petition involves a bona fide claim of right to property, he shall refer the petition to the Collector for orders; and the Collector, if he is satisfied that a bona fide claim of right to property is involved, shall make an order canceling the certificate.
10A. Power to amend certificate by addition, omission or substitution of parties.— Subject to the provisions of the Limitation Act, 1963 (36 of 1963), and upon application made to him by the certificate-holder, the Certificate Officer may, at any time, amend a certificate by the addition, omission or substitution of the name of any certificate-holder or certificate-debtor, or by the alteration of the amount claimed therein: Provided that when any such amendment is made a fresh notice and a copy of amended certificate shall be served upon the certificate-debtor as provided in section 7.
NOTE– it is clear that if the Certificate is modified or varied by the Certificate Officer under section 10 while disposing of the petition of objection filed by the certificate-debtor under section 9, then the Certificate case proceeds further without a fresh notice under section 7[Union Of India vs Jardine Henderson And Ors.-1979 AIR 972, 1979 SCR (3) 555]. The jurisdiction of a certificate officer under the Public Demands Recovery Act depends upon the place where the public demand is payable.
PART III Execution of Certificates
11. Who may execute certificate—A certificate filed under section 4 or section 6 may be executed by—
(a) the Certificate Officer in whose office the original certificate is filed, or
(b) the Certificate Officer to whom a copy of the certificate is sent for execution under section 12, sub-section (1).
12. Transmission of certificate to another Certificate Officer for execution—(1) A Certificate Officer in whose office a certificate is filed may send a copy thereof, for execution, to any other Certificate Officer .
(2) When a copy of a certificate is sent to any such officer, he shall cause it to be filed in his office, and thereupon the provisions of section 8 with respect to certificates filed in the office of a Certificate Officer shall apply as if such copy were an original certificate: Provided that it shall not be necessary to serve a second notice and copy under section 7.
13. When certificate may be executed—No step in execution of a certificate shall be taken until the period of thirty days has elapsed since the date of the service o f the notice required by section 7, or, when a petition has been duly filed under section 9, until such petition has been heard and determined:
Provided that, if the Certificate Officer in whose office a certificate is filed is satisfied that the certificate-debtor is likely to conceal, remove or dispose of the whole or any part of such of his movable property as would be liable to attachment in execution of a decree of a civil court, and that the realization of the amount of the certificate would in consequence be delayed or obstructed, he may at any time direct, for reasons to be recorded in writing, an attachment of the whole or any part of such movable properly] Provided further that if the certificate-debtor whose movable property has been so attached furnishes security to the satisfaction of the Certificate Officer, such attachment shall be cancelled from the date on which such security is accepted by the Certificate Officer.
14. Modes of execution.—Subject to such conditions and limitations as may be prescribed, a Certificate Officer may order execution of the certificate—
(a) by attachment and sale, or by sale (without previous attachment), of any property, or
(b) by attachment of any decree, or
(c) by arresting the certificate-debtor and detaining him in the civil prison, or
(d) by any two or all of the methods mentioned in clauses (a), (b) and (c).
Explanation to clause (d).—The Certificate Officer may, in his discretion at the same time against the person and property of the certificate-debtor.
15. Certain sales by whom to be held.—Where a revenue-paying estate or any share therein is liable to sale in execution of a certificate, such sale may be held
either—
(a) by the Certificate Officer exercising jurisdiction in the district to the revenue-roll of which the estate or share appertains, or
(b) by the Certificate Officer exercising jurisdiction in the district in which such estate or share is situated.
16. Interest, costs and charges recoverable—There shall be recoverable, in the proceedings in execution of every certificate filed under this Act—
(a) interest calculated in such manner as may be prescribed upon the public demand to which the certificate relates, at the rate of six and a quarter per centum per annum from the date of the signing of the certificate up to the date of realization:
Provided that—
(i) no interest shall be charged if the amount of public demand is less than twenty-five rupees or if the period from the date of signing the certificate up to
the date of realization does not exceed three months;
(ii) no interest shall be charged for the period during which the execution proceedings are stayed under an order passed by the Certificate Officer at
the instance of the certificate-holder; and
(iii) no interest shall be charged for the period during which the execution proceedings are stayed under an order passed in an appeal or in revision or by a Court at the instance of the certificate-holder, or any person other than the certificate-debtor,
(b) such costs as are directed to be paid under section 45, and
(c) all charges incurred in respect of—
(i) the service of notice under section 7, and of warrants and other processes, and
(ii) all other proceedings taken for realizing the demand.
17. Attachment of property.—Property liable to attachment and sale in execution of a decree of a Civil Court under section 60 of the Code of Civil Procedure, 1908 (Act V of 1908) may be attached and sold in execution of a certificate under this Act.
18. Payment of moneys contrary to attachment to be void.—Where an attachment has been made in execution of a certificate, any payment to thecertificate-debtor of any debt, dividend or other moneys, contrary to such attachment, shall be void as against all claims enforceable under the attachment.
19. Attachment of decree.—(1) The attachment of a Civil Court decree for the payment of money or for sale in enforcement of a mortgage or charge shall be made by the issue/to the Civil Court, of a notice requesting the Civil Court to stay the execution of the decree unless and until—
(i) the Certificate Officer cancels the notice, or
(ii) the certificate-holder or the certificate-debtor applies to the Court receiving such notice to execute the decree.
(2) Where a Civil Court receives an application under clause (//) of subsection (1), it shall, on the application of the certificate-holder or the certificatedebtor, and subject to the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), proceed to execute the attached decree and apply the net proceeds in satisfaction of the certificate.
(3) The certificate-holder shall be deemed to be the representative of the holder of the attached decree, and to be entitled to execute such attached decree in any manner lawful for the holder thereof.
20. Purchaser’s title.—(1) Where property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale, even though the property itself be specified.
(2) Where immovable property is sold in execution of a certificate, and such sale has become absolute, the purchaser’s right, title and interest shall be deemed to have vested to him from the time when the property is sold, and not from the time when the sale becomes absolute.
(3) Notwithstanding anything contained in sub-section (1), in areas in which Chapter XIV of the Bengal Tenancy Act, 1885 (VIII of 1885), is in force, where a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof, the tenure or holding shall, subject to the provisions of section 22 of that Act, pass to the purchaser, subject to the interests defined in that Chapter as “protected interests”, but with power to annul the interests defined in that Chapter as “incumbrances”:
Provided as follows:
(i) a registered and notified incumbrance with the meaning of that Chapter shall not be so annulled except in the case prescribed; and
(ii) the power to annul shall be exercisable only in the manner prescribed.(4) Where the certificate-holder is a co-sharer landlord and the certificate is for his share of the rent only, the provisions of sub-section (3) shall not apply.
21. Suit against purchaser not maintainable on ground of purchase being made on behalf of plaintiff.—(1) No suit shall be maintained, against any person claiming title under a purchase certified by the Certificate Officer in such manner as may be prescribed, on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.
22. Application to set aside sale of immovable property on deposit.—(1) Where immovable property has been sold in execution of a certificate, the certificate-debtor, or any person whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Certificate Officer to set aside the sale, on his depositing—
(a) for payment to the certificate-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of six and a quarter per centum per annum, calculated from the date of the proclamation of sale to the date when the deposit is made;
(b) for payment to the purchaser, as penalty a sum equal to five per cent of the purchase-money but not less than one rupee; and
(c) for payment to the Collector (where the certificate is for a public demand payable to the Collector), such outstanding charges due to the Government under any law for the time being in force as the Collector certifies to be payable by the certificate-debtor.
(2) Where a person makes an application under section 23 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this section.
23. Application to set aside sale of immovable property on ground of non-service of notice or irregularity.—(1) Where immovable property has been sold in execution of a certificate, the certificate-holder, the certificate-debtor, or any person whose interests are affected by the sale, may, at any time within sixty days from the date of sale, apply to the Certificate Officer to set aside the sale on the ground that notice was not served under section 7 or on the ground of a material irregularity in the certificate proceedings or in publishing or conducting the sale:
Provided as follows:—
(a) no sale shall be set aside on any such ground unless the Certificate Officer is satisfied that the applicant has sustained substantial injury by reason of the nonservice or irregularity; and
(b) an application made by a certificate-debtor under this section shall be disallowed unless the applicant either deposits the amount recoverable from him in execution of the certificate or satisfies the Certificate Officer that he is not liable to pay such amount.
(2) Notwithstanding anything contained in sub-section (1), the Certificate Officer may entertain an application made after the expiry of sixty days from the date of the sale if he is satisfied that there are reasonable grounds for so doing.
24. Application to set aside sale on ground that certificate-debtor had no saleable interest or that property did not exist.—The purchaser at any sale of immovable property in execution of a certificate may, at any time within sixty days from the date of the sale, apply to the Certificate Officer to set aside the sale on the ground that the certificate-debtor had no saleable interest in the property sold, or that the property did not exist at the time of the sale.
25. Sale when to become absolute or be set aside.—(1) Where no application is made under section 22, section 23 or section 24, or where such an application is made and disallowed, the Certificate Officer shall make an order confirming the sale, and thereupon the sale shall become absolute.
(2) Where such an application is made and allowed, and where, in the case of an application under section 22, the deposit required by that section is made within thirty days from the date of the sale, the Certificate Officer shall make an order setting aside the sale:
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
26. Disposal of proceeds of execution.—(1) Whenever assets are realized, by sale or otherwise in execution of a certificate, they shall be disposed of in the following manner:
(a) there shall first be paid to the certificate-holder the costs incurred by him;
(b) there shall, in the next place, be paid to the certificate-holder the amount due to him under the certificate in execution of which the assets were realized;
(c) if there remains a balance after these sums have been paid, there shall be paid to the certificate-holder there from any other amount recoverable under the procedure provided by this Act which may be due to him upon the date upon which the assets were realized; and
(d) the balance (if any) remaining after the payment of the amount (if any) referred to in clause (c) shall be paid to the certificate-debtor.
(2) If the certificate-debtor disputes any claim made by the certificate holder to receive any amount referred to in clause (c), the Certificate Officer shall determine the dispute.
27. Application by purchaser resisted or obstructed in obtaining possession of immovable property.—(1) 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.
(2) The Certificate Officer shall fix a day for investigating the matter, and shall summon the party against whom the application is made to appear and answer the same.
28. Procedure on such application.—(1) If the Certificate Officer is satisfied that the resistance or obstruction was occasioned without any just cause by the certificate-debtor or by some person on his behalf, he shall direct that the applicant be put into possession of the property; and, if the applicant is still resisted or obstructed in obtaining possession, the Certificate Officer may also, at the instance of the applicant, order the certificate-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days.
(2) If the Certificate Officer is satisfied that the resistance or obstruction was occasioned by any person (other than the certificate-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the certificate-debtor, the Certificate Officer shall make an order dismissing the application.
NOTE-Sections 27 and 28 are there in the statute to which a purchaser can take recourse to, but Section 28 itself is a pointer to show that physical possession may not be taken under provisions of Sections 27 and 28. The jurisdiction of the Civil Court is not barred.
29. Power to arrest and detention.—(1) No order for the arrest and detention in civil prison of a certificate-debtor in execution of a certificate shall be made unless the Certificate Officer has issued and served a notice upon the certificate-debtor Calling upon him to appear before him on a day to be specified in the notice and to show cause why he should not be committed .to civil prison, and unless the Certificate Officer, for reasons recorded in writing, is satisfied,—
(a) that the certificate-debtor, with the object or effect of obstructing or delaying the execution of the certificate,—
(ii) has, after the filing of the certificate in the office of Certificate Officer, dishonestly transferred, cancelled, or removed any part of his property, or
(b) that the certificate-debtor has or has had since the date of the filing of the certificate, the means to pay the amount for which the certificate has been issued, or some substantial part of such amount and refuses or neglects or has refused or neglected to pay the same.
Explanation.—In the calculation of the means of the certificate-debtor for the purpose of this clause there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the certificate.
(1a) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of the certificate-debtor may be issued by the Certificate Officer if the Certificate Officer is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the certificate, the certificate-debtor is likely to abscond or leave the local limits of the jurisdiction of the Certificate Officer.(1b) Where appearance is not made in obedience to a notice, issued and served under sub-section (1), the Certificate Officer may issue a warrant for the arrest of the certificate-debtor.
(1c) Every person arrested in pursuance of a warrant of arrest issued under sub-section (1a) or sub-section (1b), shall be brought before the Certificate Officer as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for journey):
Provided that, if certificate-debtor pays the amount entered in the warrant of arrest as due under the certificate, and the cost of arrest, to the officer arresting him, such officer shall at once release him.
(2) When a certificate-debtor appears before the Certificate Officer in obedience to a notice to show cause or is brought before the Certificate Officer under sub-section (1c), the Certificate Officer shall proceed to hear the certificate-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the certificate-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(3) Pending the conclusion of the inquiry under sub-section (2), the Certificate Officer may, in his discretion; order the certificate-debtor to be detained in the custody of such officer as the Certificate Officer may think fit or release him on his furnishing security to the satisfaction of the Certificate Officer for his appearance when required.
(4) Upon the conclusion of the inquiry under sub-section (2), the Certificate Officer may subject to the provision of section 31 make an order for the detention of the certificate-debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the certificate-debtor an opportunity of satisfying the certificate debt, the Certificate Officer may before making the order of detention leave the certificate-debtor in the custody of the officer arresting him or of any other officer for a specified period not exceeding fifteen days or release him on furnishing security to the satisfaction of the Certificate Officer for his appearance at the expiration of the specified period if the certificate debt be not sooner satisfied.
(5) When the Certificate Officer does not make an order of detention under sub-section
(4), he shall, if the certificate-debtor is under arrest, direct his release.
30. Release from arrest and re-arrest.—(1) The Collector may order the release of a certificate-debtor who has been arrested in execution of a certificate, upon being satisfied that he has disclosed the whole of his property and has placed it at the disposal of the Certificate Officer and that he has not committed any act of bad faith.
(2) If the Certificate Officer has ground for believing the disclosure made by a certificate-debtor under sub-section (1) to have been untrue, he may order the re-arrest of the certificate-debtor in execution of the certificate, but the period of his detention in the civil prison shall not in the aggregate exceed that authorized by section 31, sub-section (1).
31. Detention in, and release from prison.—(1) Every person detained in the civil prison in execution of a certificate may be so detained,—
(a) where the certificate is for a demand of an amount exceeding fifty rupees — for a period of six months, and
(b) in any other case — for a period of six weeks:
Provided that he shall be released from such detention—
(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or
(ii) on the certificate being otherwise fully satisfied, or cancelled, or
(iii) on the request of the person (if any) on whose requisition the certificate was filed, or of the Collector, or
(iv) on the omission by the person (if any) on whose requisition the certificate was filed to pay the subsistence allowance fixed by the Certificate Officer:
Provided also that he shall not be released from such detention under clause (ii) or clause (iii) without the order of the Certificate Officer.
(2) A certificate-debtor released from detention under this section shall not; merely by reason of his release, be discharged from his debt; but he shall not be liable to be re-arrested under the certificate in execution of which he was,-detained in the civil prison.
32. Release on ground of illness.—(1) At any time after a warrant for the arrest of certificate-debtor has been issued, the Certificate Officer may cancel it on the ground of his serious illness.
(2) Where a certificate-debtor has been arrested, the Certificate Officer may release him if, in the opinion of the Certificate Officer, he is not in a fit state of health to be detained in the civil prison.
(3) Where a certificate-debtor has been committed to the civil prison, he may be released therefrom—
(a) by the Collector, on the ground of the existence of any infectious or contagious disease, or
(b) by the Certificate Officer, or the Collector, on the ground of his suffering from any serious illness.
(4) A certificate-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that authorized by section 31, sub-section (1).
33. Prohibition of arrest or detention of women and persons under disability.— notwithstanding anything in this Act, the Certificate Officer shall not order the arrest or detention in the civil prison of—
(a) a woman, or
(b) any person who, in his opinion, is a minor or of unsound mind.
PART IV Reference to Civil Court
PART VI Supplemental Provisions
NOTE-1–Under Section 37, Public Demands Recovery Act, every question arising between the certificate-holder and the certificate-debtor relating to the execution, discharge or satisfaction of a certificate is to be determined by the certificate officer and not by a suit. If the arrangement between the manager and the plaintiff amounted to an adjustment of the certificate-debt, such question is to be determined by the certificate officer and not by the civil Court in a suit. A plea for cancellation on the ground that the certificate has not been “duly filed” is not beyond the jurisdiction of the civil Court under this section. Section 37 appears at first sight to be more comprehensive, because, it states that except as otherwise expressly provided in the Act every question arising between the certificate-holder and the certificate-debtor or their representatives relating to the making, execution, discharge or satisfaction of a certificate duly filed under the Act etc., shall be determined not by suit but by order of the certificate officer before whom such question arises. Although the section thus enacts a general bar extending to all questions relating to the making of certificates, it immediately qualifies the effect by using the words “duly filed under the Act”, so that once again, the question whether the certificate has been duly filed under the Act is not excluded from the purview of the civil Court. I am, therefore, of opinion that the civil Court can go into this question by virtue of the general provision in Section 9, Civil P. C.
NOTE-2-It appears from Section 8 (b), Public Demands Recovery Act, that after the service of notice of any certificate under Section 7 upon the certificate-debtor, the certificate-debt becomes a charge upon the immovable property of the certificate-debtor wherever situated. Rule 23 of Schedule II of the Public Demands Recovery Act lays down that where the properties are immovable, no attachment need be made before the sale. The prohibitory order issued by the certificate officer in this case was the attachment of certain debts due to the certificate-debtor and there is nothing to show why the debts outside the jurisdiction of the attaching Court cannot be attached by a prohibitory order. Further, these are matters which relate to the execution of the certificates and are to be determined by the certificate officer under Section 37, Public Demands Recovery Act.
41. Persons under disability.—Where the Certificate Officer is satisfied that the certificate-debtor is a minor or of unsound mind, he shall, in any proceeding under this Act, permit to be represented by any suitable person.
42. Continuance of certificates.—No certificate shall cease to be in force by reason of—
(a) the property to which the demand relates ceasing to be under the charge or management of the Court of Wards of the Revenue authorities; or (b) the death of the certificate-holder.
43. Procedure on death of certificate-debtor.—Where a certificate-debtor dies before the certificate has been fully satisfied, the Certificate Officer may, after serving upon the legal representative of the deceased a notice in the prescribed form, proceed to execute the certificate against such legal representative; and the
provisions of this Act shall apply as if such legal representative were the certificate-debtor and as if such notice were a notice under section 7:
Provided that where the certificate is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Certificate Officer executing the certificate may, of his own motion or on the application of the certificate-holder, compel such legal representative to produce such accounts as the Certificate Officer thinks fit.
44. Cancellation of certificates.—(1) The Certificate Officer shall cancel any certificate at the request of the certificate-holder.
(2) The Certificate Officer may cancel any certificate filed under section 6 if the certificate-holder is not reasonably diligent.
45. Costs.—Subject to such limitation as may be prescribed, the award of any cost of and incidental to any proceeding under this Act shall be in the discretion of the officer presiding, and he shall have full power to direct by whom and to what extent such costs shall be paid.
46. Compensation—If the Certificate Officer is satisfied that any requisition under section 5 was made without reasonable cause, he may} award to the certificate-debtor such compensation as the Certificate Officer thinks fit; and the amount so awarded shall be recoverable from the certificate-holder under the procedure provided by this Act for recovery of costs.
47. Entry into dwelling-house.—(1) No person executing any warrant of arrest issued under this Act, or any process issued under this Act directing or authorizing the attachment of movable property, shall enter any dwelling-house after sunset or before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless the dwelling-house or a portion thereof is in the occupancy of the certificate-debtor and he or any other occupant of the house refuses or in any way prevents access thereto; but, when the person executing any such warrant or otherprocess has duly gained access to any dwelling-house, he may break open the door of any room and enter, if he has reason to believe that entering into the room is necessary in order to enable him to execute the process.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to her that she is at liberty to withdraw; and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of executing the process; and, if the process be for the attachment of property, he may at the same time use every precaution, consistent with this section, to prevent its clandestine removal.
48. Application of Act XVIII of 1850.—Every Collector, Certificate Officer, Assistant Collector or Deputy Collector acting under this Act, and every officer of the Government making a requisition under section 5, shall, in the discharge of his functions under this Act, be deemed to be acting judicially within the meaning of the Judicial Officer’s Protection Act, 1850 (XVIII of 1850).
49. Officers to have powers of Civil Court for certain purposes.—Every Collector, Certificate Officer, Assistant Collector or Deputy Collector acting under this Act, shall have the power of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents.
50. Control over officers.—All Certificate Officers (not being Collectors), Assistant Collectors and Deputy Collectors shall, in the performance of their duties under this Act, be subject to the general supervision and control of the Collector.
51. Appeal.—(1) An appeal from any original order made under this Act shall lie—
(a) if the order was made by an Assistant Collector or a Deputy Collector, or by a Certificate Officer not being the Collector, — to the Collector, or
(b) if the order was made by the Collector, — to the Commissioner: Provided that no appeal shall lie from any order made under section 22,
(2) Every such appeal must be presented, in case (a), within fifteen days, or, in case (b), within thirty days, from the date of the order.
(3) The Collector may, by order, with the previous sanction of the Commissioner,authorize—
(i) any Subdivisional Officer, or
(ii) any officer appointed under clause (3) of section 3 to perform the functions of a Certificate Officer, to exercise the appellate powers of the Collector under sub-section (1).
(4) When any officer has been so authorized, the Collector may transfer to him for hearing any appeal referred to in clause (a) of sub-section (1), unless the order appealed against was made by such officer.
(5) Pending the decision of any appeal, execution may be stayed if the appellate authority so directs, but not otherwise.
52. Bar to second appeals.—No appeal shall lie from any order of a Collector, or an officer authorised under section 51, sub-section (3), when passed on appeal.
53. Revision.—(1) The Collector may revise any order passed by a Certificate Officer, Assistant Collector or Deputy Collector under this Act; the Commissioner may revise any order passed by a Collector under this Act; and the Board of Revenue may revise any order passed by a Commissioner under this Act.
(2) The period of limitation for an application for revision under this section shall be thirty days from the date of the order revision whereof is applied for excluding the time occupied in obtaining a copy of the order:
Provided that such an application for revision may be admitted after the period aforesaid if the applicant satisfies the Collector, the Commissioner or the Board, as the case may be, that he had sufficient cause for not making the application within the period.
54. Review.—Any order passed under this Act may, after notice to all persons interested, be reviewed by the officer who made the order, or by his successor in office, on account of mistake or error either in the making of the certificate or in the course of any proceeding under this Act.
55. Saving of other Acts.—The powers given by this Act shall be deemed to be in addition to, and not in derogation from, any powers conferred by any other Act now in force for the recovery of any due, debt or demand to which the provisions of this Act are applicable; and, except where expressly so provided, no legal remedy shall be affected by this Act.
56. Application of the Indian Limitation Act, 1908.—(1) Sections 6 to 9 of the Limitation Act, 1963 shall not apply to suits, appeals or applications under this Act.
(2) Except as declared in sub-section (1), the provisions of the Limitation Act, 1963, shall apply to all proceedings under this Act as if a certificate filed hereunder were a decree of a Civil Court.
57. Certificate Officer deemed to be a Court.—A Certificate Officer shall be deemed to be a Court, and any proceeding before him shall be deemed to be a civil proceeding within the meaning of section 14 of the Limitation Act, 1963
58. Penalties.—Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein, from being taken in execution of a certificate, shall be deemed to have committed an offence punishable under section 206 of the Indian Penal Code .
59. Signature of documents by ministerial officers.—(1) Any Certificate Officer may, by written order, authorize any ministerial officer to sign, on behalf of the Certificate Officer, any copy, issued by the Certificate Officer under this Act, of any document referred to therein.
(2) The State Government may, by notification in the Official Gazette, empower Certificate Officers to authorize ministerial officers, by written order, to sign on behalf of Certificate Officers any classes of original notices, summonses or proclamations issued by Certificate Officers under this Act which are specified in such notification.
Schedule I
Public Demands [See sees. 3(6) and 34(b)]
