Updated: Saturday December 14, 2013/AsSabt
Safar 11, 1435/Sanivara
Agrahayana 23, 1935, at 04:54:25 PM
[1][1]The
(Punjab Act II of 1936)
[
An
Act to provide for the more effective
protection
of debtors in the
Preamble.— WHEREAS it is expedient for the more
effective protection of debtors to modify the existing law on certain points
and to amend the law with respect to persons carrying on business as
money-lenders:---
AND
WHEREAS the previous sanction of the Governor-General under sub-section (3) of
section 80-A of the Government of India Act and the previous sanction of the
Governor under section 80-C of the said Act have been obtained;
It
is hereby enacted as follows:---
CHAPTER
PRELIMINARY
1. Short title, extent and commencement.— (1) This Act may be called the Punjab
Debtors’ Protection Act, 1936.
(2) It extends to the
(3) It shall come into force at once.
2. Definitions.— In this Act, unless there is anything
repugnant in the subject or context,—
(1) “Bank”
means a company carrying on the business of banking and registered under any of
the enactments relating to companies for the time being in force in the United
Kingdom, or in any of the Colonies or Dependencies thereof, or in [2][2][Pakistan], or incorporated by an Act of
Parliament [3][3][of the United Kingdom] or by Royal Charter
or Letters Patent or by any Act of the [4][4][Parliament].
(2) “Company” means a company registered under any of the enactments
relating to companies for the time being in force in the United Kingdom or in
any of the Colonies or Dependencies thereof, or in [5][5][Pakistan], or incorporated by an Act of Parliament [6][6][of the United Kingdom] or by Royal Charter or Letters
Patent, and includes Life Assurance Companies to which the Indian Life
Assurance Companies Act, 1912[7][7], applies.
(3) “Co-operative
Society” means a society registered under the provisions of the Co-operative
Societies Act, 1912[8][8].
(4) “Court”
includes a court acting in the exercise of insolvency jurisdiction.
(5) “Interest”
includes the return to be made, over and above what was actually lent, whether the
same is charged or sought to be recovered, specifically by way of interest, or
otherwise.
(6) “Loan”
means an advance whether of money or in kind at interest and shall include any
transaction which the court finds to be in substance a loan, but it shall not
include:-
(i) a deposit of money or other property in a Post
Office Savings Bank or any other bank, or in a company or with a co-operative
society;
(ii) a loan to or by, or a deposit with any society
or association registered under the Societies Registration Act, 1860[9][9], or under any other enactment for the time being in
force;
(iii) a loan advanced by the [10][10][Provincial Government] or by any local body
authorized by the [11][11][Provincial Government];
(iv) a loan advanced by a bank, a co-operative
society or a company whose accounts are subject to audit by certificated
auditor under the [12][12][* * *] [13][13][Companies Ordinance, 1984];
(v) a loan advanced to a trader;
(vi) an advance made on the basis of a negotiable
instrument as defined in the Negotiable Instruments Act, 1881[14][14], other than a promissory note;
(vii) a transaction which is, in substance, a
mortgage or a sale of immovable property.
(7) “Money-lender”
means a person who, in the regular course of business, advances a loan as defined
in this Act and shall include the legal representatives and the
successors-in-interest, whether by inheritance, assignment or otherwise, of the
person who advance the loan.
(8) “Trader”
means a person who in the regular course of business buys and sells goods or
other property, whether movable or immovable, and shall include—
(i) a wholesale or a retail merchant,
(ii) a commission agent,
(iii) a broker,
(iv) a manufacturer,
(v) a contractor
(vi) a factory owner,
but shall not include a person who sells his
own agricultural produce or cattle, or buys agricultural produce or cattle for
his own use.
CHAPTER
II
EXECUTION
OF DECREES
3. Definitions.— In this Chapter, unless there is anything
repugnant in the subject or context,—
(1) “land” means land which is not occupied as the
site of any building in a town or village, and is occupied or has been let for
agricultural purposes, or for purposes subservient to agriculture, or for
pasture and includes the sites of buildings and other structures on such land;
(2) “Collector” means the [15][15][Collector of a district appointed under the
Punjab Land Revenue Act, 1967 (XVII of 1967)] or any officer specially
empowered by the [16][16][Board of Revenue] to exercise the powers of a
Collector under this Chapter;
[17][17][(3) “[18][18][Executive District Officer (Revenue)]” means the
[19][19][Executive District Officer (Revenue)] of [20][20][the district] or any officer specially empowered
by the [21][21][Board of Revenue] to exercise the powers of [22][22][an Executive District Officer (Revenue)] under
this Chapter.]
4. Temporary alienation of land in
execution of decree for the payment of money.— (1) Notwithstanding anything contained in
any other enactment for the time being in force whenever a civil court orders
that land be attached and alienated temporarily in the execution of a decree
for the payment of money the proceedings of such attachment and alienation
shall be transferred to the Collector.
(2) On
the proceedings being transferred to him by the civil court the Collector shall
decide the period of alienation, which shall not exceed twenty years in the
case of land owned by a member of a statutory agricultural tribe, determined to
be such by the [23][23][Board of Revenue] in exercise of the powers
conferred by section 4 of the Punjab Alienation of Land Act, 1900[24][24].
5. Partial
exemption of land.— Such portion of the judgment-debtor’s land shall be
exempted from temporary alienation as in the opinion of the Collector, having
regard to the judgment-debtor’s income from all sources except such income as
is dependent on the will of another person, is sufficient to provide for the
maintenance of the judgment-debtor and the members of his family who are
dependent on him.
6. Collector
and [25][25][Executive District Officer (Revenue)] deemed to be acting judicially.— The Collector when
acting under sections 4 and 5 shall be deemed to be acting judicially and shall
act in accordance with the provisions of law applicable to the Court from which
the proceedings were transferred to him and any party aggrieved by an order of
the Collector under section 4 or 5 shall have a right of appeal to the [26][26][Executive District Officer (Revenue)] who when
hearing appeals under this section shall be deemed to be acting judicially and
shall act in accordance with the provisions of law applicable to a Civil Court
of Appeal.
[27][27][6-A. Revision.— The [28][28][Board of Revenue] may, at any time, call for
and examine the record of any order passed, or proceedings taken by the
Collector or the [29][29][Executive District Officer (Revenue)] under this Act for the purpose of satisfying
[30][30][itself] as to the legality or propriety of
such order or such proceedings and may pass such order thereon as [31][31][it] may think fit.]
7. Limitation for appeals.— The period of limitation for an appeal under
the last foregoing section shall run from the date of the order appealed
against and shall be sixty days.
8. Rules to be made after previous
publication.— The [32][32][Provincial Government] may, subject to the
condition of previous publication, make rules for carrying into effect the
provisions of sections 4, 5, 6 and 7 of this Chapter.
9. Exemption of ancestral property from
liability.— When custom is
the rule of decision in regard to succession to immovable property then,
notwithstanding any custom to the contrary, ancestral immovable property in the
hands of a subsequent holder shall not be liable in the execution of a decree
or order of a court relating to a debt incurred by any of his predecessors in
interest:
Provided
that, when the debt has been expressly charged by way of mortgage on ancestral
immovable property by a predecessor in interest, the court shall determine the
liability of such land as if this section had not been passed:
Provided
further, and subject to the foregoing proviso, that, in respect of a debt
incurred before the commencement of this Act, ancestral property in the hands
of a subsequent holder may be liable, only if all the following conditions are
satisfied:-
First— That, before such liability is determined,
the judgement-debtor shall be given sufficient opportunity to show cause
against such liability.
Second— That such liability
was permitted by the rule of custom applicable to the judgment-debtor
immediately before the commencement of this Act, and nothing in this section
shall prevent the judgment-debtor from proving the contrary.
Third— That the decree-holder is able to show to
the satisfaction of the court, that, at the time the debt was originally
incurred, there was a subsisting judgment or order of a competent court, not in
ex parte proceedings, holding that such a custom was
applicable to the sub-tribe in the tahsil to which the judgment-debtor belongs.
Fourth— That the Judgment-debtor is not able to
show to the satisfaction of the court, that, at the time the debt was
originally incurred, there was a subsisting judgment or order of a competent
court, not in ex parte proceedings,
holding to the contrary and subsequent to the judgment relied upon by the
decree-holder.
10. Exemption of standing crops and trees from
attachment or sale.—
Notwithstanding anything to the contrary contained in any other enactment for
the time being in force:-
(1) standing
crops, other than cotton and sugarcane, shall not be liable to attachment or
sale in the execution of a decree;
(2) standing
trees apart from the land on which they stand shall not be liable to sale in
the execution of a decree or an order of a court.
11. Execution barred in certain cases.— (1) Notwithstanding anything to the contrary
contained in any other enactment for the time being in force, where an
application has been made to execute a decree passed after the commencement of
this Act against a debtor as defined in sub-section (2) of section 7 of the
Punjab Relief of Indebtedness Act, 1934[33][33], and not being a decree granting an
injunction, no order for the execution of the same decree shall be made upon
any fresh application presented after the expiration of six years from—
(a) the
date of the decree sought to be executed, or
(b) where
the decree or any subsequent order directs any payment of money or the delivery
of any property to be made at a certain date or at recurring periods, the date
of the default in making the payment or delivery in respect of which the
applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed—
(a) to
preclude the Court from ordering the execution of a decree upon an application
presented after the expiration of the said term of six years, where the
judgment-debtor has, by fraud or force, prevented the execution of the decree
at some time within six years immediately before the date of the application;
or
(b) to
limit or otherwise affect the operation of Article 183 of the First Schedule to
the [34][34][* * *] Limitation Act, 1908[35][35].
[36][36][11-A. Land exempt from attachment or sale not
to be proceeded with in execution of money decrees.— Notwithstanding anything contained in the
Code of Civil Procedure, 1908, no decree for the payment of money shall be
executed by the sale without attachment, or by the appointment of a receiver of
land or the produce of land or an interest in land, which under any law for the
time being in force, is exempt from attachment or sale.]
CHAPTER
III
BURDEN
OF PROOF
12. Burden
of proof of consideration.— Notwithstanding anything to the contrary
contained in any other enactment for the time being in force, the burden of
proving that any consideration alleged to have been paid by a money-lender
actually passed shall be on him; unless the consideration is acknowledged by a
debtor in his own handwriting or has been endorsed by the registering officer
acting under clause (c) of sub-section (1) of section 58 of the [37][37][* * *] Registration Act, 1908[38][38], as having been paid in his
presence.
[1][1]For statement of objects and
reasons, see Punjab Gazette, 1935,
Part I, page 249; for Report of the Select Committee, see Punjab Gazette, 1935, Part V, pages 49-50; for proceedings in
council, see Punjab Legislative
Council Debates, Volume XXVI, pages 988-989; Volume XXVII, pages 1137-1174,
1177-1210, 1238-1247; Volume XXVIII, pages 903, 1003-1028.
This Act received the assent of the
Governor of the Punjab on 16th April, 1936; that of the Governor-General on
30th May, 1936; and was published in the
[2][2]Substituted, for the words “a
Province” by West Pakistan Laws (Adaptation) Order 1964, section 2(1), Schedule
Pt. II, which were previously substituted, for the words “British India”, by
the Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955),
section 2, Schedule I, Part II.
[3][3]Inserted by West Pakistan
Laws (Adaptation) Order, 1964, section 2(1), Schedule Pt I.
[4][4]Substituted, for the words
“Central Legislature”, by the Punjab Laws (Adaptation) Order, 1974 (Pb A.O. 1
of 1974), which words were earlier substituted, for “Indian Legislature”, by
the Government of India (Adaptation of Indian Laws) Order, 1937 as amended by
the Government of India (Adaptation of Indian Laws) Supplementary Order, 1937.
[5][5]Substituted for the words “a
Province” by West Pakistan Laws (Adaptation) Order 1964, section 2(1), Schedule
Pt.II, which were previously substituted for the words “British India” by the
Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955), section 2,
Schedule I, Part. II.
[6][6]Inserted by West Pakistan
Laws (Adaptation) Order, 1964, section 2(1), Schedule Pt I.
[7][7]VI of 1912.
[8][8]II of 1912.
[9][9]XXI of 1860.
[10][10]Substituted, for the words
“Local Government”, by the Government of
[11][11]Ibid.
[12][12]The word “Indian”, omitted by
the Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955),
section 2, Schedule I, Part II.
[13][13]Substituted for the words
“Companies Act, 1913”, by the Punjab Debtors’ Protection (Amendment) Ordinance,
2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[14][14]XXVI of 1881.
[15][15]Substituted for the words
“Deputy Commissioner of a district”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[16][16]Substituted,
for the words “Provincial Government” by the
[17][17]Added by the Punjab Debtors’
Protection (Amendment) Act, 1939 (X of 1939), section 3.
[18][18]Substituted
for the word “Commissioner”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[19][19]Ibid.
[20][20]Substituted
ibid., for the words “a Division”.
[21][21]Substituted,
for the words “Provincial Government” by the
[22][22]Substituted
for the words “a Commissioner”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[23][23]Substituted,
for the words “Provincial Government” by the
[24][24]III of 1900.
[25][25]Substituted
for the word “Commissioner”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[26][26]Ibid
[27][27]Inserted by the Punjab
Debtors’ Protection (Amendment) Act, 1939 (X of 1939), section 4.
[28][28]Substituted, for the words
“Financial Commissioner”, by the
[29][29]Substituted
for the word “Commissioner”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001), which will remain in force under the Provisional
Constitution (Amendment) Order 1999 (9 of 1999), Article 4, notwithstanding the
maximum limit of three months prescribed under Article 128 of the Constitution
of the Islamic Republic of Pakistan.
[30][30]Substituted by the
[31][31]Substituted ibid., for “he”.
[32][32]Substituted, for the words
“Local Government”, by the Government of
[33][33]VII of 1934.
[34][34]The word “Indian”, omitted by
the Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955),
section 2, Schedule I, Part II.
[35][35]IX of 1908.
[36][36]<s
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