Section 16. Insertion of new Schedule II
16. Insertion of new Schedule II.- After Schedule I to the principal Act as renumbered, the following Schedule shall be inserted, namely:-
"SCHEDULE II
PROCEDURE FOR RECOVERY OF TAX OR PENALTY
[See sub-section (1) of section 14]
PART I
1. Definitions- In this Schedule, unless the context otherwise requires,-
(a) "certificate" means a certificate signed by the Tax Recovery Officer under rule 2;
(b) "defaulter" means the person mentioned as defaulter in the certificate and includes any person where name is substituted or added by the Tax Recovery Officer;
(c) "execution" in relation to a certificate, means recovery of arrears in pursuance of the certificate;
(d) "From" means a Form given in the Annexture to this Schedule;
(e) "movable property" includes growing crop;
(f) "rule" means a rule contained in this Schedule;
(g) "share in a corporation" includes stock, debentures or bonds; and
(h) "Tax Recovery Officer" means a Regional Transport officer appointed by the State Government and any other officer who may be authorised by the State Government, by notification, to exercise the Powers of Tax Recovery Officer under the Schedule within the jurisdiction as may be specified.
2. Filing of certificate and amendment thereof- (1) when the Tax Recovery Officer is satisfied that a registered owner or person having possession or control of a vehicle is in default in making payment of any tax or additional tax clue or any penalty directed to be ??? under the Orissa Motor Vehicles Act, 1975, he may sign a certificate in Form-1 stating that the amount is due and shall proceed to recover the amount in accordance with the provisions of this Schedule.
(2) Subject to the by of limitation, the Tax Recovery Officer may at any time amend the certificate by addition, omission or substituted of the name of any defaulter or by alteration of the amount mentioned in the certificate, as the case may fee, on being satisfied that the amendment is so necessary:
Provided that when any such amendment is made, a fresh notice as provided in rule 3 shall be issued to the defaulter.
(3) Issue or service of notice and effect thereof- (1) When a certificate has been signed by the Tax Recovery Officer under rule 2, he shall issue a notice to the defaulter in Form 2 along with a copy of the certificate directing him to pay the amount within a period not exceeding thirty days from the date of service of the notice.
(2) After the service of notice of any certificate under sub-rule (1) or on a defaulter,-
(a) Any private transfer or delivery of any of his immovable property or any interest in 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 such property, to which every other charge created subsequent to the service of the said notice shall be postponed:
Provided that the Tax Recovery Officer may, at any time for reasons to be recorded in writing, direct an attachment of the whole or any part of the immovable property belonging to the defaulter
(3) The defaulter may, within the period of time specified in the notice issued under sub-rule (1), present to the Tax Recovery Officer a petition denying his liability only on the ground that-
(a) the demanded amounts have been fully or partly paid or
(b) the person on whom such notice has been served is not the defaulter; or
(c) the amount by Law is not recoverable from him.
4. Hearing and determining the petition denying liability- The Tax Recovery Officer may after hearing the petition and taking evidence, as may be necessary, confirm the amount mentioned in the certificate or set aside, modify or very the same as he deems fit.
5. Execution of Certificate- A certificate signed under rule 2 may be executed by-
(a) the Tax Recovery Officer who signed the certificate; or
(b) the Tax Recovery Officer to whom a copy of the certificate is sent for execution under rule 6.
6. Transmission of certificate to any other Tax Recovery Officer for Execution- (1) A Tax Recovery Officer who signed the certificate may send the copy thereof for execution to any other Tax Recovery Officer in whose jurisdiction the defaulter resides, carries on his business or the property of the defaulter are situated or kept.
(2) If the copy of the certificate is transmitted by the Tax Recovery Officer who signed the certificate, to another Tax Recovery Officer before the notice under rule 3 is issued or served, the latter shall issue the notice or cause it to be served, as the case may be heard the petition filed denying liability, if any and shall proceed to recover the amount under this Schedule. In that case, he shall intimate the position from time to time to the Tax Recovery Officer who signed the original certificate.
7. When the certificate may be executed- No step in execution of a certificate shall be taken until the period specified in the notice issued under rule 3 has elapsed since the date of the service of the notice or when a petition has been filed denying liability until such petition has been heard and determined:
Provided that when the whole or any act of the movable property of the defaulter is liable to attachment under this Schedule, the Tax Recovery Officer may, at any time for reasons to be recorded in writing, direct an attachment of the whole or any part of such movable property.
8. Mode for recovery- If the amount mentioned in the notice is not paid within the time specified therein or within such further time as the Tax Recovery Officer may grant, the Tax Recovery Officer shall proceed to realise the amount by one or more of the following modes-
(a) by attach that and sale of the defaulters' movable property;
(b) by attachment it and sale of the defaulter's immovable property;
(c) by arrest of the defaulter and his detention in prison.
9. Interest, cost and charges recoverable- There shall be recoverable in the proceedings in execution of every certificate-
(a) interest at the rate as may be notified by the State Government, from the day commencing after the and of the period specified in the notice issued under rule 3;
(b) all charges incurred in respect of-
(i) the service of notice upon the defaulter to pay the arrears, and of warrants and other processes; and
(ii) all other proceedings taken for realizing the arrears.
10. Purchaser's title- (1) Where property is sold in execution of a certificate, there shall vest in the purchases the right, title and interest, of the defaulter at the time of the sale, free from all encumbrances.
(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 in him from the time when the property ??? sold, and not from the time when the sale becomes absolute."
11. Disposal of proceeds of executions (1)- When was assets are realised by sale or otherwise in execution a certificate, they shall be disposed of in the following manner-
(a) There shall first be paid to the Tax Recovery Officer the costs incurred by him in the proceeding;
(b) There shall, in the next place, be paid to the Tax Recovery Officer the amount due under the certificate in execution of which the assets were realized; and
(c) The balance, if any, remaining after the payment of the amount, if any, referred to in clause (d) shall be paid to the defaulter.
12. Property exempt from attachment:- (1) All such property as is by the Code of Civil Procedure, 1908 (5 of 1908) exempted from attachment and sale in execution of a decree of a Civil Court shall be exempt from attachment and sale under this Schedule.
(2) The Tax Recovery Officer's decision as to what property is so entitled to exemption shall be conclusive.
13. Investigation by Tax Recovery Officer- (1) Where any claim is preferred to, or any objection is made to the attachment or sale of any property in execution of a certificate on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection:
Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designed or to cause unnecessary delay.
(2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Offices ordering the sale may postpone it pending the investigation of the claim or objection upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit.
(3) The claimant or objector shall adduce evidence to show that-
(a) in the case of immovable property, at the date of the service of notice issued under this Schedule to pay the arrears; or
(b) in case of movable property, at the date of the attachment, he had some interest in or was possessed of, the property in question.
(4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him or that being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as the thinks fit, from attachment or sale.
(5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim.
(6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order of the Tax Recovery Officer shall be conclusive.
14. Removal of attachment on satisfaction or cancellation of certificate:- Where-
(a) the amount due with costs and all charges and expenses resulting from the attachment of any property or incurred in order to hold a sale, are paid to the Tax Recovery Officer; or
(b) the certificate is cancelled,
the attachment shall be deemed to be withdrawn and in the case of immovable property the withdrawal shall, if the defaulter so desires, be proclaimed at this expense and a copy of the proclamation shall be affixed in the mariner provided by this Schedule for a proclamation of sale of immovable property.
15. Officer entitled to attach and sell- The attachment and sale of property shall be made by the Tax Recovery Officer.
16. Defaulting purchaser answerable for loss on resale- Any deficiency of price which may happen on a resale by reason of the purchaser's default, and all expenses attending such resale shall be certified by the Tax Recovery Officer and shall be recoverable from the defaulting purchaser under the procedure provided by this Schedule:
Provided that no such application shall be entertained unless filed within fifteen days from the date of resale.
17. Adjournment or stoppage of sole- (1) The Tax Recovery Officer may, in his discretion, adjourn any sale hereunder to a specified day and hour.
(2) Where a sale of immovable property is adjourned under sub-rule (1) for a longer period than one calendar month, a fresh proclamation of sale under this Schedule shall be made unless the defaulter consents to waive it.
(3) Every sale shall be stopped if before the lot is knocked down, the arrears and costs (including the costs of the sale) are tendered to the Tax Recovery Officer.
18. Prohibition against bidding or purchase by officer- No Officer or other person having any duty to perform in connection with any sale under this Schedule shall, either directly or indirectly, bid for acquire or attempt to acquire any interest in the property sold.
19. Prohibition against sale on holidays- No sale under this Schedule shall take place on a Sunday or other general holiday recognised by the State Government or any day which has been notified by the State Government to be a local holiday for the area in which the sale is to take place.
20. Assistance by Police- The Tax Recovery Officer may apply to the Officer-in-charge of the nearest police-station for such assistance as may be necessary in the discharge of his duties, and the authority to whom such application is made shall depute a sufficient number of police officer for furnishing such assistance.
PART II
ATTACHMENT AND SALE OF MOVABLE PROPERTY
21. Warrant- When any movable property is to be attached, the Tax Recovery Officer shall prepare a warrant under his signature in Form 3 specifying the name of the defaulter and the amount to be realised and cause a copy of the warrant to be served on the defaulter.
22. Attachment- after service of the copy of the warrant, the amount is not paid forthwith, the Tax Recovery Officer shall proceed to attach the movable property of the defaulter.
23. Property in defaulter's possession:- Where the property proceeded against is movable property (other than agricultural produce) in the possession of the defaulter, it shall be attached by actual seizure and the Officer shall keep the properly in his custody or in the custody of one of his subordinates or in the custody of a Zimadar, who shall be responsible for due custody thereof:
Provided that when the property seized is subject to speedy and natural decay or when the expense of keeping it in custody is likely to exceed its value the officer may sell it at once.
24. Agricultural produce- Where the property proceeded against is agricultural produce, it shall be attached by affixing a copy of the warrant-
(a) where such produce is growing crop, on the land on which such crop has grown, or
(b) where such produce has been cut or gathered, on the threshing floor or place for treading out grain or the like, or fodder stack, on or in which it is deposited.
and another copy on the outer door or on some other conspicuous part of the house in which the defaulter ordinarily resides, or on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain, or in which he is known to have last resided or carried on business or personally worked for gain. The produce shall, thereupon, be deemed to have passed into the possession of the Tax Recovery Officer.
25. Provisions as to agricultural produce under attachment:- (1) Where agricultural produce is attached, the Tax Recovery Officer shall make such arrangements for the custody, watching, tending, cutting and gathering thereof as he may deem sufficient; and the assessing authority shall bear such amount as the Tax Recovery Officer shall require in order to defray the cost of such arrangements.
(2) Subject to such conditions as may be imposed by the Tax Recovery Officer in this behalf, either in the order of attachment or in any subsequent order, the defaulter may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and if the defaulter fails to do all or any of such acts, any person appointed by the Tax Recovery Officer in this behalf may, subject to the like conditions, do all or any of such acts and the costs incurred by such persons shall be recoverable from the defaulter as if they were included in the certificate.
(3) Agricultural produce attached as growing crop shall not be deemed to have ceased to be under attachment or to require reattachment merely because it has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been made at a considerable time before the crop is likely to be fit to be cut or gathered, the Tax Recovery Officer may suspend the execution of the order for such time as he thinks fit, and may, in his discretion, make a further order prohibiting the removal of the crop pending execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being stored, shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.
26. Debts and share, etc.:- (1) In the case of
(a) a debt not secured by a negotiable instrument;
(b) a share in a corporation; or
(c) other movable property not in the possession of the defaulter except property deposited in, or in the custody of, any court,
the attachment shall be made by a written order in Form 4 prohibiting-
(i) in the case of a debt, the creditor from recovering the debt and debtor from making payment thereof until further order of the Tax Recovery Officer;
(ii) in the case of a share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
(iii) in the case of any other movable property (except as aforesaid), the person in possession of the same from giving it over to the defaulter.
(2) A copy of such order shall be affixed on some conspicuous part of the office of the Tax Recovery Officer, and another copy shall be sent in the case of debt, to the debtor, in the case of share, to the proper Officer of the corporation and in the case of other movable property (except as aforesaid) to the person in possession of the same.
(3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt to the Tax Recovery Officer and such payment shall discharge him as effectually as payment to the party entitled to receive the same.
27. Share in movable property:- Where the property proceeded against consists of the share or interest of the defaulter in movable property belonging to him and another as co-owners, the attachment shall be made by a notice in Form 5 to the defaulter prohibiting him from transferring the share or interest or charging it any in any way.
28. Attachment of negotiable instrument:- Where the property is a negotiable instrument not deposited in a court nor in the custody of a public officer, the attachment shall be made by actual seizure.
29. Attachment of property in custody of courses or public officer:- Where the property proceeded against in the custody of any court or public officer, the attachment shall be made by a notice in Form 6 to such court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Tax Recovery Officer by whom the notice is issued:
Provided that where such property is in the custody of a court, any question of title or priority relating to any person, not being the defaulter, claiming to be interested in such property by virtue of any assignment, attachment or otherwise shall be determined by such court.
30. Attachment of partnership property:- (1) Where the property proceeded against consist of an interest of the defaulter being a partner, in the partnership property, the Tax Recovery Officer may make an order charging the share of such partner in the partnership property and profits with payment of the amount due under the certificate, and may, by the same or subsequent order appoint a receiver of the share of such partner in the profits, whether already declared on accruing and of any other money which may become due to him in respect of the partnership, and direct accounts and enquiries and make an order for the sale of such interest or such other order as the circumstances of the case may require.
(2) The other person shall be at liberty at any time to redeem the interest charged or in the case of a sale being directed, to purchase the same.
31. Attachment not to be excessive:- The attachment by seizure shall not be excessive, that is to say, the property seized shall be as nearly as possible proportionate to the amount specified in the warrant.
32. Inventory:- In the case of attachment of movable property by actual seizure, the officer shall, after seizure of the property, prepare an inventory of all the property attached, specifying in it the place where it is lodged or kept, and a copy of the inventory shall be delivered to the defaulter.
33. Seizure between sunrise and sanest:- Attachment by seizure shall be made after sunrise and before sunset and not otherwise.
34. Power to break open door, etc.:- The officer may break open any inner or outer door of any building and after any building in order to seize any movable property if he has reasonable grounds to believe that such building contains movable property liable to seizure under the warrant and he has notified his authority and intention of breaking open it admission is not given. He shall, however, give all reasonable opportunity to women to withdraw.
35. Sale:- The, Tax Recovery Officer may direct that any movable property attached under this Schedule or such portion thereof as may seem necessary to satisfy the certificate shall be sold.
36. Issue of proclamation:- When any sale of movable property is ordered by the Tax Recovery Officer he shall issue a proclamation in Form 7 in the language of the district, of the intended sale, specifying the time and place of sale and whether the sale is subject to confirmation or not.
37. Proclamation how made:- (1) Such proclamation shall by made by beat of drum or other customary mode,-
(a) in the case of property attached by actual seizure-
(i) in the village in which the property was seized or if the property was seized in a town or city then in the locality in which it was seized, and
(ii) at such other places as the Tax Recovery Officer; may direct and
(b) in the case of property attached otherwise than by actual seizure, in such place as the Tax Recovery Officer if any may direct.
(2) A copy of the proclamation shall also be affixed in a conspicuous part of the office of the Tax Recovery Officer.
38. Sale after fifteen days:- Except where the property is subject to Speedy and natural decay or when the expense of keeping it in custody is likely to exceed its value, no sale of movable property under this Schedule shall, without the consent in writing of the defaulter, take place until after the expiry of at least fifteen days calculated from the date on which a copy of the sale proclamation was affixed in the Office of the Tax Recovery Officer.
39. Sale of agricultural produce:- (1) Where the property to be sold is agricultural produce, the sale shall be held-
(a) if such produce is growing crop, on or near the land on which such crop has grown, or
(b) if such produce has been cut or gathered, at or near the threshing-floor or place for treading out grain or the like, or fodder-stack, on or in which it is deposited:
Provided that the Tax Recovery Officer may direct the sale to be held at the nearest place of public resort, if he is of opinion that the produce is thereby likely to sell to greater advantage.
(2) Where, on the produce being put up for sale,-
(a) fair price, in the estimation of the Tax Recovery Officer is not offered for it, and
(b) the owner of the produce, a person authorised to act on his behalf, applies to have the sale post posed till the next day or, if a market is held at the place of sale, till the next market day,
The sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.
40. Special provisions relating to growing crops:- (1) Where the property to be sold is a growing crop and the crop from its natural admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of the crop being made ready for storing before the arrival of such day, and the sale shall not be held unit the crop has been out or gathered and is ready for storing.
(2) Where the crop from its nature does not admit of being stored can be sold to a greater advantage in an ??? stage, as in the case of green wheat, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending or cutting or gathering the crop.
41. Sole to be by auction- The property shall be sold by public auction in one or more lots as in Officer may consider advisable and if the amount to be realised by is satisfied by the sale of a portion of the property the sale shall be immediately stopped with respect to the remainder of the Plots.
42. Sale by public auction:- (1) Where movable property is sold by public action, the price of each lot shall be paid at the time of sale or as soon after as the Officer holding the sale directs and in default of payment, the property shall forthwith be resold.
(2) On payment of the purchase money, the Officer holding the sale shall grant a certificate spiffing the property purchased, the price paid and the name of the purchaser and the sale shall become absolute.
(3) Where the movable property to be sold is a share in goods belonging to the defaulter and a co-owner and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.
43. Irregularity not to vitiate sale, but any person injured may sue- No irregularity in publishing or conducting the sale of movable property shall vitiate the sale, but any person sustaining substantial injury by reasons of such irregularity at the hand of any other person may institute a suit in a civil court against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.
44. Negotiable Instruments and shares in a Corporation- Notwithstanding anything contained in this Schedule where the property to be sold is a negotiable instrument or a share in a Corporation, the Tax Recovery Offer may instead of selling it by public auction, sell such instruments or share through a broken.
45. Order for parent of coin or currency notes to the Tax Recovery Officer:- Where the property attached is current coin or currency notes, the Tax. Recovery Officer may, at any time during the continuance of the attachment direct that such coin or note, or a part there of sufficient to satisfy the certificate be paid over to the authority, who may be specified by the Tax Recovery Officer in writing.
PART III
ATTACHMENT AND BALE OF IMMOVABLE PROPERTY
46. Attachment- Attachment of immovable property of the defaulter shall be made by an order in form 8 Prohibiting the defaulter from transferring of or charging the property in any way and prohibiting all persons from taking any benefit under such transfer or charges.
47. Service of notice of attachment:- A copy of the order of attachment shall be served on the defaulter.
48. Proclamation of attachment:- The order of attachment shall be proclaimed at some place on or adjacent to the property attached by beat of drum or other customary mode, and a copy of the order shall be fixed on a conspicuous part of the property and on the notice board of the office of the Tax Recovery Officer.
49. Attachment to relate back from the date of service of notice- Where any immovable property is attached under this Schedule, the attachment shall relate back to, and take effect from the date on which the notice to pay the arrears issued under this Schedule was served on the defaulter.
50. Sale and proclamation of sale- (1) The Tax Recovery Officer may direct that any immovable property which has been attached or such portion thereof, as may seem necessary to satisfy the certificate, shall be sold.
(2) Where any immovable property is or dared to be sold, the Tax Recovery Officer shall cause a proclamation in Form 7 of the intended sale to be made in the language of the district.
51. Contents of proclamation:- A proclamation of sale of immovable property shall be drawn up after notice to defaulter and shall state the time and place of sale and shall specify, as fairly and accurately as possible,-
(a) the property to be sold;
(b) the revenue, if any, assessed upon the properly or any part thereof;
(c) the amount for the recovery of which the sale is ordered; and
(d) any other thing which the Tax Recovery Officer considers it material for a purchaser to know, in order to judge the nature and value of the property.
52. Mode of markings proclamation- (1) Every proclamation for the sale of immovable property shall be made at some place on or near such property by beat of drum or other customary mode and a copy of the proclamation shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the Office of the Tax Recovery Officer.
(2) Where the Tax Recovery Officer so directs, such proclamation shall also be published in the official gazette or in a local newspaper, or in both, and the cost of such publication shall be deemed to be cost of the sale.
(3) Where the property is divided into lets for the purpose of being sold separately it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the state cannot in the opinion of the Tax Recovery Officer, other wise be given.
53. Time of sale- No sale of immovable property under this Schedule shall, without the consent in writ ting of the defaulter, take place until after the expiration of all east thinly days calculated from the date on which a copy of the proclamation of the sale has been affixed on the property or in the Office of the Tax Recovery Officer, whichever is later.
54. Sale to by auction- The sale shall be by public action to the highest bidder and shall be subject to confirmation by the Tax Recovery Officer.
55. Deposit by purchaser and resale in default- (1) On every sale of immovable on party, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent of the amount of his purchase money, to the Tax Recovery Officer and in default of such deposit, the property shall forthwith be resold.
(2) The full amount of purchase money payable shall be paid by the Par charge to the Tax Recovery Officer, or before the fifteen day from the date of the sale of the property,
56. Procedure in default of payment-In default of payment within the period mentioned in the proceeding rule, the deposit may, if the Tax Recovery Officer thinks fit, after defraying the expenses of the sales, be forfeited to the Government, and the properly shall be resold, and the defaulting purchaser shall for fit all claims to the property or to any part of the sum for which it may subsequently be sold.
57. Authority to bid:- All persons bidding at the sale shall be required to declare if they are bidding on their behalf or on behalf of their principals. In the latter case, they shall be required to deposit their authority, and in default, their bids shall be rejected.
58. Application to set aside sale of immovable property on deposit- (1) Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose, interests are affected by the sale may at any time within thirty days from the date of sale, apply to the Tax Recovery Officer to set aside the scale, on his depositing-
(a) for the payment towards the anear, the amount specified in the proclamation of sale as that to the recovery of which the sale was ordered, with interest thereon at the rate of twelve percent per annul calculated from the date of proclamation of sale to the date when the deposit is made and;
(b) for the payment to the purchaser, as penalty, a sum equal to five per cent of the purchase-money but not less than one rupee.
(2) Where a person makes an application under rule 60 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 rule.
59. Application to set aside sale of immovable property on ground of non-service of notice of irregularity:- Where immovable property has been sold in execution of a certificate, the defaulter, or any person whose interests are affected by the sale, may, at anytime within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale of the immovable property on the ground that notice was not served on the defaulter to pay the arrears as required by this Schedule on the ground of a material irregularity in publishing or conducting the sale:
Provided that-
(a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the non-service or irregularity; and
(b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in execution of the certificate.
63. Setting aside sale where defaulter has no sale able interest:- At any time within thirty days of the sale the purchaser may apply to the Tax Recovery Officer to set aside the sale on the ground that the default had no sale able interest in the property sold.
73. Release on ground of illness- (1) At any time after a warrant for the arrest of a defaulter has been issued, the Tax Recovery Officer may cancel it on the ground of his serious illness.
(2) Where a defaulter has been arrested, the Tax Recovery Officer may release him if, in the opinion of the Tax Recovery Officer, he is not in a fit state of health to be detained in the civil prison.
(3) Where a defaulter has been committed to the civil prison, he may be released therefrom by the Tax Recovery Officer on the ground of existence of any infectious or contagious disease, or on the ground of his suffering from any serious illness.
(4) A defaulter released under this rule may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that authorised by rule 71.
74. Entry in dwelling house- For the purpose of making an arrest under this Schedule,-
(a) no dwelling house shall be entered after sunset and before sunrise.
(b) no outer door of a dwelling house shall be broken open unless such dwelling house or a portion thereof is in the occupancy of the defaulter and he or any other occupant of the house refuses or in any way prevents access thereto; but when the person executing any warrant has duly gained access to any dwelling house, he may break open the door of any room or apartment if he has reason to believe that the defaulter is likely to be found there; and
(c) no room, which is in the actual occupancy of a woman who according to the customs of the country, does not appear in public, shall be entered into unless the officer authorised to make the arrest has given notice to her that she is at liberty to withdraw and has given her reasonable time and facility for withdrawing.
75. Prohibition against arrest of women or minors, etc.- The Tax Recovery Officer shall not order the arrest and detention in the civil prison of-
(a) a woman, or
(b) any person who in his opinion, is a minor or of unsound mind.
76. Subsistence allowance- (1) When a defaulter is arrested or detained in the civil prison, the sum payable for the subsistence of the defaulter from the time of arrest until he is released shall be borne by the State Government.
(2) Such sum shall be calculated on the scale fixed by the State Government for the subsistence of judgement-debtors arrested in execution of a decree of a civil court.
(3) Sums payable under this rule shall be deemed to be costs in the proceeding:
Provided that the defaulter shall not be detained in the civil prison or arrestested on account any sum so payable.
PART V
Miscellaneous
77. Power to take evidence- Every Tax Recovery Officer or other officer acting under this Schedule shall have the powers of a Civil Court while trying a suit for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses and compelling the production of documents.
78. Appeals- (1) An appeal from any order passed by the Tax Recovery Officer under this Schedule shall lie to the Transport Commissioner and, after admitting an appeal the Transport Commissioner may dispose of it himself or, if no so decides, may make over to an officer subordinate to him not below the rank of Joint Commission Transport.
(2) Every appeal under this rule must be presented within thirty days from the date of the order, appealed against.
(3) Pending the decision of any appeal execution of the certificate may be stayed of the appellate authority so directs, but not otherwise.
79. Reviwe- Any order passed under this Schedule may, after notice to all persons interested be reviewed by the Officer who made the order, or by his successor in offices on account of any mistake apparent on the record.
80. Recovery from surety- Where any person his, under this Schedule, become surevy for the amount due by the defaulter, he may be proceeded against under this Schedule as if he was the defaulter.
81. Application of Code of Civil Procedure, 1908- In the matters of Procedure not provided for in this Schedule the relevant provisions of the Code of Civil procedure, 1908 shall mustatie mutandis apply.