A Critical Analysis on The Legal Procedure of Sale as A Means of Execution Of A

Certificate
Mohammad Sazzad Ali Sakib

Public Demands Recovery Act 1913 (Hereinafter referred as PDR) is an instrument enacted
exclusively for the recovery of money fallen due and the certificate proceedings has three modes
of execution,1 of which auction sale comes into action as the last resort.2 The essential provisions
regarding auction sale are dealt in section 20-25 and rules 44 to 76 of Schedule II of the act.

Reason Behind the Inclusion of Sale in the Execution Modes: Passing Rights through Sale
Completion
Section 14 denotes that there are two types of sale i.e. attachment and sale, only sale. Generally,
movable property needs to be attached for creating liability but in case of immovable property,
section 8 comes into play and makes it as an attachment though it cannot be attached in real.
similarly section 20(1), (2) enact that it is only the right, title and interest of the certificate-debtor
which will pass to the purchaser by the sale3 and it shall be vested at the time of the sale,4 not
from the time when sale becomes absolute. Now, if there is no application or is application
submitted but disallowed then the sale becomes absolute and the sale gets completed.5

Money decree and Rent Decree

The effect of the sale in execution of a certificate under section 20(1) is of money decree, and
under section 20(3) is of a rent decree thereof.6 Under section 20(1), the right, title, and interest
pass to the purchaser at the time of sale and purchaser steps into the shoes of certificate-debtor.
However, if the certificate debtor had no right when the sale took place then it would nothing but
a nullity. Under section 20(3), the tenure or holding will pass with the right of annual the

1
Public Demands Recovery Act 1913, Section 14.
2
Ibid, Board Instructions No. 38.
3
Golam Hafez Ali v Khadem Ali, 29 DLR (SC) 311.
4
Supra, n 1, Section 20(1), 20(2); jibal hauque v char uvala 19 DLR 312.
5
Section 25.
6
S.A. Naim, Towards understanding the law of public demands recovery, (3rd edn, UP, Dhaka) 110.
encumbrances 7 and such pass shall take place with compliance of doctrine of representation.
Therefore, any failure to satisfy the said doctrine would end up as money decree.

Benami purchase and its consequences

Section 21 discourages for benami purchases at certificate sale. Moreover, it deems certified
purchaser to be the real purchaser conclusively and prohibits suits to assert a benami title against
him.8 Therefore it can be submitted that the said section demands a procedural bar to for the
enforceability against the claim based on benami transaction.

Procedure to Be Followed for Auction Sale: Movable and Immovable Property

In every case, there are two parties i.e. auction purchaser, the seller (certificate officer/ Court).
Here only the competent persons are empowered to conduct the sale.9 If any immovable property
is above 40 Taka, it is ordered to be sold by public auction.10 Therefore the public officer must
cause a proclamation of sale in the concerned area. 11 Moreover, a mandatory notice shall be
served to certificate debtor regarding the sale.12 The time limit for auction sale is 30 days from
the sale proclamation in case of immovable property and 15 days in case of movable property; it
is to be taken place with written permission of certificate debtor. 13 If it is purchased without
permission then Certificate Officer can set aside the sale.14 The sale can be adjourned by the
officer and fresh proclamation is needed if it is so.15

Remedy After Sale: Setting Aside Sale

The topnotch purpose of certificate proceeding is not to sell the property; rather to realize the
public demands. Therefore, after an auction sale the Certificate Debtor gets an opportunity to
apply for setting the sale aside in two ways i.e. civil court, certificate officer. But he cannot
exercise both which run as follows:

7
Supra, n 3, para 317.
8
Angada Chandra Roy v Amrendra Nath, 48 DLR 595.
9
Supra, n 1, Schedule II, Rule 45.
10
Ibid, Rule 46.
11
Ibid.
12
Ibid.
13
Ibid, Rule 48.
14
Ibid, Rule 49(3).
15
Ibid, Rule 50.
 i) Under section 22 the aggrieved person must apply before the expiry of 30 days from
sale and moreover he needs to deposit the money mentioned in the section and such
order cannot entertain review but revision.
ii) Under section 23, if the debtor is applying because of not serving notice, then that
must be material irregularity in the proceeding, and he must satisfy that the certificate
debtor gets substantial (economic) injury thereby.
iii) Under section 24, even the purchaser can apply when the debtor had no right in the
property at the time of sale.

When Sale gets void: Consolidation of many debts

In Chittagong Engineering and Electrical Supply v Certificate Officer,16 it held sale, in respect of
several certificate debts, is not a sale under PDR and such a sale would be void thereby.

Scope for Development

1. The plain section 20(5) would lead us nowhere except confusion as State Acquisition and
Tenancy Act, 1951 (SAT Act) is in action. The phrase ‘co-sharer landlord’ has no
significance as now Government is the only landlord, and we are tenant according to
SAT Act.
2. Sometimes section denotes a very obsolete tone of language i.e. 1 Taka, immovable
property not less than 40 Taka when it is almost impossible to imagine a land of 40 Taka
and around. Moreover, some vague words i.e. material irregularity, substantial injury has
been used.
3. The act is silent regarding the effect of fraud in a sale. If we take a holistic approach in
compliance with Order 21, Rule 90 of CPC, fraud can affect a sale but with a difference
of substantial injury.

16
17 DLR 404.
Conclusion:

If the procedures before sale and after sale are analyzed, it can be understood that everything
done during the proceeding is just as the Certificate Debtor is served with notice under 7 and of
proclamation and gives his written consent thereby. In conclusion, it can be submitted that the
mechanism is just and effective.