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436 DISTRAINT.

L«ctukk prepared to abscond, the proprietor or farmer may, if he

"! cannot realise the arrears by the distraint of the personal

property of the defaulter or his surety, cause them to be arrested in the prescribed manner ;l and if the arrears are found to be due after the prescribed investigation, the defaulter and his surety are to be kept in close custody until payment.2 These provisions are now repealed by section 1 of Act X of 1859. Remedies By the Putnee Regulation, VIII of 1819, section 15,

against kbooJ

kashta. clause 5, it is provided that khoodkasht ryots may be

proceeded against by process of arrest, or summary suit, or
distraint, in the usual manner; and if the defendant does
not appear or cannot be arrested, the plaintiff may proceed
ex parte to obtain the management of his lands under
clause 3 of the same section. This section was repealed by
Act X of 1859, section 1. This Act and Act VIII of 1869
(B.C.), while repealing the provisions for the imprisonment
of ryots, also enact3 that "if payment of rent, whether
the same be legally due or not, is extorted from any
under-tenant or ryot by illegal confinement or other duress,
such undertenant or ryot shall be entitled" to recover
damages up to two hundred rupees, without prejudice to
any other liability of the person practising such extortion.

Distraint The main remedy provided at the Permanent Settlement

was distraint. This had been in use previously; and by
the rules of 30th July 1790 the Board of Revenue directed
that where the ryots gave security which was accepted
by the landholders, the ryot's crops should not be attached

.... ■ 8. 15, cl. 1.

• lb., cl. 5.

* Act X of 1859, s. 12. Act VIII of 1869 (B.C.), s. 13.

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DISTRAINT UNDER THE REGULATIONS. 437

unless the security had absconded and other good security had Lecturk not been tendered.1 The same provision is contained in — the Regulations of the 23rd November 1791,* but was repealed by the Regulations of the 20th July 1792 and by Regulation VIII of 1793, section 67, clause 3, and Regulation XVII of 1793.

The Regulations of 20th July 1792," after reciting that in consequence of the rights of landholders not being sufficiently defined, some, in accordance with the previous practice, resort to most oppressive modes of realising rent, and often extort money in the same way, while others are deterred from using any compulsion by the same want of certainty as to their rights, empower zemindars, &c., without notice to the Collector, to distrain the crops and products of the earth of every description, the grain, cattle, and all other personal property belonging to their under-renters and ryots and the talookdars paying revenue through them, for arrears of rent or revenue, and to cause the same to be sold in discharge of such arrears. There must, however, be a previous demand.* The same powers are vested in dependent talookdars with respect to their under-farmers and ryots: and in under-farmers from zemindars, independent talookdars, and other actual proprietors, or from dependent talookdars ; also in farmers who hold direct from Government, to enable such farmers to enforce payment of arrears of rent or revenue from their ryots, under-farmers, or dependent talookdars.5 But the property of persons

1 Colebrooke's Supplement, 494.
'lb., 308, art. 70.

• lb., 335.
4 Art. 4.

• Art. 1

438 DISTRAINT UNDER THE REGULATIONS.

Lecturs employed in the manufacture of the fabrics for the Com*

XII. * )

— pany's investments is protected.1 Ploughs and implements of husbandry, cattle actually trained for the plough, and seed grain are not to be distrained if there is other distress available." Resistance to distress is to be punished with imprisonment.' These provisions were re-enacted by Regulation XVII of 1793, the Court or a public officer being substituted for the Collector. This Regulation was repealed by section 1 of Act X of 1859. By these Regulations the property could be released by giving security.* These provisions were repealed by Regulation XXXV of 1795, a Regulation, as already mentioned, passed to remove some of the difficulties which the zemindars experienced in realising their rents under the restrictions imposed at the Permanent Settlement.5 This was also repealed by section 1 of Act X of 1859.

Regulation VII of 1799 was also passed in furtherance of the same object. It recites that the present powers were sometimes insufficient, particularly where the crops not being in the immediate possession of the defaulter cannot be distrained and sold under Regulations XVII of 1793 and XXXV of 1795. It enacts, by section 2, that the power of distraint may be delegated to agents; by section 3, that no demand is necessary to constitute default (repealing the provisions of Regulation XVII of 1793, section 5) ; but the withholding payment beyond the due date renders the defaulter liable to immediate distraint for all such arrears

1 Art. 2.
Art. 3.
» Art. 18.

4 Arts. 8, 9 of Regulation of 20th July 1792, and ss. 9, 10 of Regula-
tion XVII of 1793.
• Fifth Report, Vol I, 70, 71.

OTHER REMEDIES. 439

as are not paid on demand. The distrainer, after giving Lkcthiw

the defaulter's surety notice, may distrain either the —

defaulter's or the surety's property, or both; but before

distraining on the surety's property there must be a

demand from the defaulter. Various other restrictions are

abolished, and provision is made for the case of a defaulter

forcibly or clandestinely removing property attached. It

is also provided that no claim to the crops on the ground,

or to any gathered product of the ground attached in the

possession of the defaulter, shall bar the prior claim of

rent; such produce being mortgaged to the proprietor, who

is entitled to distrain and sell and realise the arrears due.1

The defaulter and his surety, as we have seen, may be Remedies

. when distraint

arrested under this Regulation when the arrears cannot ineffectual.

be realised by distraint; and by section 15, clause 6, if

payment is not immediately made, the landlord may attach

and manage the tenant's holding until payment, observing

the same rules with respect to the tenants as the defaulter

was bound to observe. By clause 7, if the arrear is not

liquidated within the year, the landlord may annul the lease

if the tenant is an under-farmer: or if the tenant is a

dependent talookdar or holder of a transferable tenure, his

tenure may be sold through the Court: if the tenant is a

leaseholder, or has a right of occupancy only so long as a

certain rent, or a rent determinable on certain principles

according to local rates and usages, is paid, without any right

of property or transferable possession, the proprietor or

farmer, or the lessee or assignee of the proprietor, may oust

the tenant for breach of the conditions of his tenure. And

these powers, except that of sale, may be exercised without

1 S. 9.

440 OTHER REMEDIES.

L«cturk an application to the Court. Regulation VIII of 1819, sec— tion 18, in explanation of these provisions, authorises sending a sezawul to attach any tenure between the zemindar and the cultivator, in case a summary suit for arrears has been instituted, and the rent has been iD arrear for a whole month. This may be done whether the defaulter has been arrested or not.1 And when an arrear has been adjudged due, the plaintiff may cancel of his own authority any lease, farm, or other limited interest, intermediate between himself and the actual cultivator, on account of which the rent may have been claimed. He cannot, under the award in the summary suit, sell other real property of the defendant except talooks liable to sale, or talooks under section 3 of Regulation VIII of 1819 which may be sold for their own arrears. These provisions do not apply to khoodkasht ryots: such ryots may be proceeded against by process of arrest, by a summary suit, or by distraint. The above provisions of Regulation VII of 1799 and Regulation VIII of 1819 were also repealed by section 1 of Act X of 1859. Regulation V of 1812 also deals with the same subject. By section 13 distress for rent is illegal unless preceded by demand, accompanied with a jumma-wasilbakee, showing the grounds on which the demand is made. By section 14 ploughs and implements of husbandry are exempt from distress, although there may not be sufficient other property; and by section 15, if the tenant should dispute the demand, he may have the attachment withdrawn upon giving security. These provisions were also repealed by Act X of 1859, section 1.

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