1THE PUNJAB DEBTORS’ PROTECTION ACT, 1936
(Punjab Act II of 1936)
[6 June 1936]
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 I
PRELIMINARY
1. Short title, extent and
commencement.— (1) This Act may be called the
Punjab Debtors’ Protection Act, 1936.
(2)It extends to the Punjab.
(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[Pakistan], or incorporated by an
Act of Parliament 3[of the United Kingdom] or by Royal Charter or Letters
Patent or by any Act of the 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[Pakistan], or incorporated by an Act of Parliament 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, 19127, applies.
(3)“Co-operative Society” means a society registered under the provisions of
the Co- operative Societies Act, 19128.
(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, 18609, or under any other enactment for the time being in force;
(iii)a
loan advanced by the 10[Provincial Government] or by any local body authorized by
the 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[* * *] 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, 188114, 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 advanced 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[Collector
of a district appointed under the Punjab Land
Revenue Act, 1967 (XVII of 1967)] or
any officer specially empowered by the 16[Board of Revenue] to exercise the
powers of a Collector under this Chapter;
17[(3) “18[Executive District Officer (Revenue)]” means the 19[Executive
District Officer (Revenue)] of 20[the district] or any officer
specially empowered by the 21[Board of Revenue] to exercise the powers of 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[Board
of Revenue] in exercise of the powers conferred by section 4 of the Punjab
Alienation of Land Act, 1900.24
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[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[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[6-A. Revision.— The
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[Executive
District Officer (Revenue)] under this Act for the purpose of satisfying 30[itself]
as to the legality or propriety of such order or such proceedings and may pass
such order thereon as 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[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, 193433,
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[* * *] Limitation Act, 190835.
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[* * *] Registration Act, 190838,
as having been paid in his presence.
________________________
1For 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 Punjab Gazette (Extraordinary), dated 6th June, 1936.
2Substituted, 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.
3Inserted by West Pakistan Laws (Adaptation) Order, 1964,
section 2(1), Schedule Pt I.
4Substituted, 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.
5Substituted 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.
6Inserted by West Pakistan Laws (Adaptation) Order, 1964,
section 2(1), Schedule Pt I.
7VI of 1912.
8II of 1912.
9XXI of 1860.
10Substituted, for the words “Local Government”,
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.
11Ibid.
12The word “Indian”, omitted by the
Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955), section
2, Schedule I, Part II.
13Substituted for the words “Companies
Act, 1913”, by the Punjab Debtors’ Protection (Amendment) Ordinance, 2001 (XLV
of 2001) which was protected and continued under the Provisional Constitutional
Order, 1999 (Chief Executive’s Order 1 of 1999) as amended by the Provisional
Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9 of 1999) and
Article 270AA of the Constitution of the Islamic Republic of Pakistan as
substituted by the Constitution (Eighteenth Amendment) Act, 2010.
14XXVI
of 1881.
15Substituted for the words “Deputy
Commissioner of a district”, by the Punjab Debtors’ Protection (Amendment)
Ordinance, 2001 (XLV of 2001) which was protected and continued under the
Provisional Constitutional Order, 1999 (Chief Executive’s Order 1 of 1999) as
amended by the Provisional Constitution (Amendment) Order, 1999 (Chief
Executive’s Order 9 of 1999) and Article 270AA of the Constitution of the
Islamic Republic of Pakistan as substituted by the Constitution (Eighteenth
Amendment) Act, 2010.
16Substituted, for the words “Provincial Government” by the
West Pakistan (Adaptation and Repeal of Laws) Act, 1957 (XVI of 1957), section
3, Schedule III. The words “Provincial Government” were earlier substituted,
for the words “Local Government”, 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.
17Added by the Punjab Debtors’ Protection (Amendment) Act,
1939 (X of 1939), section 3.
18Substituted for the word
“Commissioner”, by the Punjab Debtors’ Protection (Amendment) Ordinance, 2001
(XLV of 2001) which was protected and continued under the Provisional
Constitutional Order, 1999 (Chief Executive’s Order 1 of 1999) as amended by
the Provisional Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9
of 1999) and Article 270AA of the Constitution of the Islamic Republic of
Pakistan as substituted by the Constitution (Eighteenth Amendment) Act, 2010.
19Ibid.
20Substituted ibid.,
for the words “a Division”.
21Substituted, for the words
“Provincial Government” by the West Pakistan (Adaptation and Repeal of Laws)
Act, 1957 (XVI of 1957), section 3, Schedule III. The words “Provincial
Government” were earlier substituted, for the words “Local Government”, 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.
22Substituted for the words “a Commissioner”,
by the Punjab Debtors’ Protection (Amendment) Ordinance, 2001 (XLV of 2001)
which was protected and continued under the Provisional Constitutional Order,
1999 (Chief Executive’s Order 1 of 1999) as amended by the Provisional
Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9 of 1999) and
Article 270AA of the Constitution of the Islamic Republic of Pakistan as
substituted by the Constitution (Eighteenth Amendment) Act, 2010.
23Substituted, for the words “Provincial Government” by the West
Pakistan (Adaptation and Repeal of Laws) Act, 1957 (XVI of 1957), section 3,
Schedule III. The words “Provincial Government” were earlier substituted, for
the words “Local
Government”, 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.
24III of 1900.
25Substituted for the word
“Commissioner”, by the Punjab Debtors’ Protection (Amendment) Ordinance, 2001
(XLV of 2001) which was protected and continued under the Provisional
Constitutional Order, 1999 (Chief Executive’s Order 1 of 1999) as amended by
the Provisional Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9
of 1999) and Article 270AA of the Constitution of the Islamic Republic of
Pakistan as substituted by the Constitution (Eighteenth Amendment) Act, 2010.
26Ibid
27Inserted by the Punjab Debtors’ Protection (Amendment) Act,
1939 (X of 1939), section 4.
28Substituted, for the words
“Financial Commissioner”, by the West Pakistan (Adaptation and Repeal of Laws)
Act, 1957 (XVI of 1957), section 3, Schedule III.
29Substituted for the word
“Commissioner”, by the Punjab Debtors’ Protection (Amendment) Ordinance, 2001
(XLV of 2001) which was protected and continued under the Provisional
Constitutional Order, 1999 (Chief Executive’s Order 1 of 1999) as amended by
the Provisional Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9
of 1999) and Article 270AA of the Constitution of the Islamic Republic of
Pakistan as substituted by the Constitution (Eighteenth Amendment) Act, 2010.
30Substituted by the West Pakistan (Adaptation and Repeal of
Laws) Act, 1957 (XVI of 1957), for “himself”.
31Substituted ibid.,
for “he”.
32Substituted, for the words “Local
Government”, 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.
33VII of 1934.
34The word “Indian”, omitted by the
Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955), section
2, Schedule I, Part II.
35IX of 1908.
36Inserted by the Punjab Debtors’ Protection (Amendment) Act,
1938 (IX of 1938), section 2.
37The word “Indian”, omitted by the
Punjab Laws (Adaptation, Revision and Repeal) Act, 1954 (XV of 1955), section
2, Schedule I, Part II.
38XVI
of 1908.
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