AI Structured Summary
Not yet generated for this judgment
Judgment
James, J.—This is a reference from the Registrar of the Civil Courts at Gaya u/s 113, Civil P.C., on the question of whether in the execution of a rent decree notice should issue under Rule 68(2), Order 21, before the sale proclamation is drawn up.
Section 163, Ben. Ten. Act, provides that
notwithstandi0ng anything, contained in the Civil Procedure Code, the Court shall issue simultaneously the order of attachment and the sale proclamation required by Section 287, Civil P.C." (O. 21, Rule 66 of the Code of 1908).
The attachment of the holding in execution of the decree is made under Rule 54, Order 21. If notice under Rule 66(2) is to issue before the sale proclamation is drawn up, and if the order of attachment and sale proclamation are to issue simultaneously, then the order of, attachment will not issue until after a notice under Rule 66(2). It cannot have been the intention of the legislature that in proceedings in execution of rent decrees the order of attachment should issue less promptly than in execution of an ordinary decree; and the meaning of the rule laid down in Section 163, Ben. Ten. Act, that notwithstanding anything contained in the CPC the Court shall issue simultaneously the order of attachment and sale proclamation appears to be clear. In proceedings taken in execution of a decree for rent, no notice under Rule 66(2) is required before the sale proclamation is drawn up, and the sale proclamation should ordinarily issue at the same time as the property is attached under Rule 54. I would accordingly answer the reference in these terms.
Courtney-Terrell, C.J.
I agree.