網頁圖片
PDF
ePub 版
[ocr errors]

weeks

ago

I had occasion to mention the subject in connection with the law of pre-emption in Oudh. Mr. Hope mentioned it the other day in connection with the Jágírdárs of Sindh. Within the last few years, it has twice been the subject of a general and formal inquiry by the Government of India. There is hardly any part of India in which the problem does not more or less exercise the mind of the local Government and of its principal officers. Some of them think that India abounds with usurers, who lend their money chiefly with a view of getting the land of the debtor, each being a sort of Indian version of the

Fænerator Alphius

Jam jam futurus rusticus.' Others tell us of village Shylocks, each intent upon securing his pound of flesh, and with apparently no village Portias to counteract their machinations by quibbling away what is written down in the bond. No doubt there has been some exaggeration in those matters, but, all exaggeration apart, the problem is a serious one, and requires some careful consideration.

Now the rapid transfer of land, which creates such uneasiness, is a process which we may see to have gone on in all countries where wealth is increasing and the commercial spirit is advancing. And though it is always accompanied by some painful incidents, the process is a healthy and beneficial one enough, if it is spread over a length of time, if it advances only with advancing civilization, and is not accelerated by adventitious circumstances.

The peculiarity of our case in India is this, that, with the British rule, we introduced two most powerful factors of civilization tending to promote the transfer of land to the moneyed classes. One of those factors is an equal and moderate assessment of revenue, which has given to the land a margin of value that it did not possess before, and has made it a covetable possession for the purpose of investing money. The other factor is a vigorous system of lawCourts, which gives to the creditor swift and certain means of enforcing his contracts and of taking his debtor's land if he cannot pay.

There is no doubt that those means have been very much increased since the Civil Procedure Code came into force, and it is a strong testimony to the efficacy of the Code as a whole, though in this particular instance it may have produced some disagreeable effects.

[ocr errors][ocr errors][merged small]

The Code itself contains no check whatever upon the unreserved and unqualified sale of the land of the debtor who cannot pay. There is, indeed, one section-Section 248 of the Code-which provides that, in certain circumstances, the execution of a decree may be handed over to the Collector. Whether it was intended to give the Collector any discretionary power in such cases may be doubted, but at all events if it was intended, the intention is not clearly expressed, and the Courts have held that the Collector is only a ministerial officer for carrying into effect the decrees of the Court. The result is that sales have gone on in a rigid mechanical way, without even the check of an upset price, or of a power of adjourning the sale when the whole thing is an evident failure, and with the common result that the property is bought in by the judgment-creditor himself at a great undervalue.

There are some parts of our dominions—the Panjáb, Oudh, and the Central Provinces in which the Code has been introduced with a material modification upon this point, the modification being in the shape of a provision that, before a debtor's land can be sold, the consent of some high and responsible authority shall be required; so that there is a discretionary power given to the Administration to prevent such sales. And we are told that in those Provinces there has been a substantial retardation, and, in the opinion of, I think I may say, all officers, a beneficial retardation, of the process of transferring land from one hand to another. But elsewhere, where the Code has been introduced in its simplicity, the transfer of land has been going on at an accelerated pace, with the effect of creating a large dispossessed and discontented class.

The effects of this system upon debtors have been very much intensified by certain arrangements which lower the price to be obtained at execution-sales. I explained to the Council before that there are two rules which have a very prejudicial effect in that respect. One is the rule that nothing can be put up for sale excepting that vague thing, the 'right, title, and interest of the debtor in the land. Whether that right, title, and interest be much, or little, or nothing at all, it is the only thing which can by law be sold. The other is the rule that the judgment-creditor, who is practically the vendor, shall keep the purchasemoney in his pocket, although it may turn out that the

[ocr errors]

right, title, and interest which he has sold are nothing whatever, although he may have put up for sale the land of an entire stranger, and although the purchaser may have got nothing by his purchase except a lawsuit.

I believe also that another blemish in these sales is that the property, however large, is always put up in a single lot.

In our Report of last year we mentioned the effect of those rules, and the remedies which we proposed for bettering the condition of the debtor. Our remedies were, to allow a specific description of the interest to be sold, and to require at least some attempt at a more specific description than the law now allows; to alter the rule as to the recovery of money when nothing whatever has been sold; to prevent the creditor from bidding at a sale except with the permission of the Court; and to provide that the Executive may make rules imposing conditions on sales. We contemplated that the rules made by the Executive would be of such a nature as this—to require the consent of some high and responsible authority, as is done in the Panjáb and in the other Provinces I have mentioned, to provide for an upset price, for sales in lots when desirable, for adjournment of sales, and such other safeguards as might be thought necessary to prevent the land from being sold for a mere song.

Regarding the action of the Collector we said this :

“It has been held that the Collector is a mere ministerial officer under the corresponding section of the present Code, and that he has no discretion as to postponing sales, fixing an upset price, or any other matter affecting the substance of the sale. And it is suggested that the Collector ought to have discretion in such matters, or even some larger power to make arrangements for payment of the debt by some means short of an absolute sale of the land. The point is one on which we should be glad of opinions from those who have been led to study it. It will be remembered that, in Section 272, we propose to give power to the Executive to make special rules on the subject of sales of land.'

Respecting the incidents of sales and the risks incurred by purchasers we said :

“ We shall be glad to know of those wbo are familiar with the subject whether the fact really is that property is apt to be sold at an undervalue in execution-sales, and if so, to what cause they impute it, what they think of the alterations now proposed, and whether any remedy has occurred to them by which more security can be given to purchasers with the view of obtaining better prices for land.'

[ocr errors]

Those are the points on which we specifically asked for advice. Upon the latter point we find a large concurrence in our views, and I need only say here that we have gone somewhat further in requiring specific description of the property to be sold. We hope that the proposed alterations will lead to inore care in putting up properties to sale than is now exercised by judginent-creditors. Anyone who wishes to examine them more at large will find them in Section 288 of Bill No. IV.

Upon the more important question of controlling the execution of a decree for sale we have received a great deal of advice, and the result is that we propose to make some more specific alterations of the law than the mere investiture of the Executive with power to impose conditions on the sale of land. I will just read to the Council some of the views which we have received upon this subject. The Lieutenant-Governor of Bengal, who has sent us three Minutes, all of value, says upon this point :

“• I am advised by many well-informed authorities that the immoveable property sold in execution of decrees often goes for prices much below the ordinary selling value, not only by reason of the uncertainty for which I have just proposed a remedy, but also by reason of the summary and obligatory character of the sale. Indeed, it is notorious that the misfortune of a man whose property has thus to be sold, is much aggravated by the unduly low sum which it fetches. The unpopularity which must thus, as I believe unneces. sarily, attach to the sale of such property in execution of decree, is manifest. I say unnecessarily, because if a good department of execution of decrees were to be established, it could take charge of such property, attaching it before sale; managing it for a time; thus practically ascertaining its value; fixing an upset price; and in the event of such price not being offered, retaining the land under management for the benefit of the judgment-creditor and judgmentdebtor alike. The cost of such management would be recoverable from the property. If the property consisted of land paying revenue to Government, it might best be managed by the Collector of the district, under precept from the Civil Court.'

Now it will be seen that what the Lieutenant-Governor recommends is the establishment of a department for the execution of decrees, and he has insisted upon that plan further in another Minute in which he goes into the matter with a good deal of detail. It may be an excellent plan, and I do not say a single word against it, but it is rather outside the scope of our present operations. It is an administrative operation, and would require the consent of the Government of India after going through the ordeal of

various executive departments, the head of one of which I see looking very hard at me across the table. At the same time it will be seen that we adopt in substance the proposal of Sir Richard Temple, only that, instead oť a new department, we propose to use the existing machinery of the Collector.

A case

Mr. Bell, the Legal Remembrancer to the Goverument of Bengal, a gentleman of great experience, writes as follows on the subject of execution-sales :

“With regard to the difficulties which decree-holders experience in executing their decrees, I bave nothing to add to the very full discussion which the subject has undergone in His Honor the LieutenantGovernor's Minute of the 29th September. But there is another aspect of the question which should also be considered : I mean the grossly inadequate price at which the debtor's property is sold at these execution-sales. More noble and ancient families have been ruined by these Civil Court sales than hy any other cause. came before me the other day in which property, for which the judgment-creditor had himself previously offered Rupees 50,000, was purchased by the same judgment-creditor at an execution-sale for Rupees 6,800. I venture to say that hundreds and hundreds of similar cases happen every year in Bengal. The present Bill (Section 288) attempts faintly to deal with the evil by providing that the judg. ment-creditor shall not bid for the property sold without the express sanction of the Court. But that is clearly a most inadequate remedy. In many cases, unless the judgment-creditor was permitted to bid, there would be no bidders at all. What is required is that there shall be some security that the property is sold at a fair price. There is only one way in which this can be done, and that is by allowing the judgment-debtor, in case the Court holding the sale considers the price offered inadequate, to have the estate valued by the Court, and made over at such valuation to the judgment-creditor in satisfaction of his debt. I am sure that no measure short of this will be able to remove this great blot on our judicial administration. The present system of selling landed property at these judicial sales is only another form of robbery sanctioned by law.'

Now the Council will observe that Mr. Bell speaks in very strong terms of the inadequacy of the prices obtained at these execution-sales. But having read every word that is said upon this subject in the volumes of correspondence before me, and every word said in the two inquiries which I mentioned as having been made by the Government of India, and having had the opportunity of speaking about it to many gentlemen in high judicial positions, I have only found one officer who expresses an opinion that adequate prices are obtained at execution-sales. No doubt such may be the case in some portion of India, but that it is not the case

« 上一頁繼續 »