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Mt. Naraini Devi Vs. Sm. Durga Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution first Appeal No. 27-D of 1957
Judge
Reported inAIR1959P& H324
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60 and 60(1); Debt Law; Punjab Relief of Indebtedness Act, 1934 - Sections 35
AppellantMt. Naraini Devi
RespondentSm. Durga Devi
Appellant Advocate Radhey Mohan Lal Aggarwal and; Yogeshwar Dayal, Advs.
Respondent Advocate D.D. Chawla and; Bishan Chander, Advs.
DispositionAppeal allowed
Excerpt:
.....or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the..........section 35 of this, act has amended the proviso to sub-section (1) of section 60 of the code of civil procedure by adding a clause (ccc) whereunder one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him has been exempted from attachment and sale in execution of a decree.2. on the decree-holder having taken out execution of the decree, the judgment-debtor filed objection petition under section 60(1)(ccc) of the code of civil procedure claiming exemption of the house in question. the executing court has by its order of march 2, 1957, dismissed that objection petition on the ground.....
Judgment:

Mehar Singh, J.

1. This is a first appeal by the judgment debtor against whom a suit was filed on October 14, 1955 by the decree-holder to recover an amount of Rs. 8,385/-. Although the debt was secured upon a mortgage of house, but a personal decree in favour of the decree-holder and against the judgment-debtor was passed by the trial Judge on November 12, 1956. Before the date of the decree, the house, now in question, had been attach-ed before judgment on October 22, 1955. On June 8, 1956, the Punjab Relief of Indebtedness Act (Punjab Act No. VII of 1934) was extended to the Union territory of Delhi. Section 35 of this, Act has amended the proviso to Sub-section (1) of Section 60 of the Code of Civil Procedure by adding a Clause (ccc) whereunder one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him has been exempted from attachment and sale in execution of a decree.

2. On the decree-holder having taken out execution of the decree, the judgment-debtor filed objection petition under Section 60(1)(ccc) of the Code of Civil Procedure claiming exemption of the house in question. The executing Court has by its order of March 2, 1957, dismissed that objection petition on the ground that Punjab Act No. VII of 1934 was enforced in the Union Territory of Delhi after the house had been attached, during the pendency of the suit, before judgment, and, as that Act does not operate retrospectively, the house having been already attached is liable to sale under Section 60 of the Code of Civil Procedure. It is against that order that the judgment debtor has come in appeal.

3. It is common ground between the learned counsel for the parties that Punjab Act No. VII of 1934, section 35, does not operate retrospectively in so far as it has been made applicable to the Union territory, of Delhi From June 8, 1956. The contention of the learned counsel for the judgment-debtor is that, although there was attachment of the house before judgment but the attachment did not become attachment in execution of the decree within Section 60 of the Code of Civil Procedure until the decree had been passed and the execution application had been made by the decree-holder and that in so far as the learned trial Judge had made reference to Order XXXVIII Rule 11, that merely obviates the procedural formality of going through the manner of attachment all over again, if there has been already an attachment before judgment but that procedural formality does not make the attachment, an attachment in execution of the decree until the decree has been passed and the decree-holder makes an application for execution of the same.

The reply on behalf of the decree-holder is simply this, that attachment of the house before judgment was for the benefit of the decree-holder and the property thereby came in the custody of the Court so as to be available for the satisfaction of the decree on the same being passed against the judgment-debtor. Immediately on attachment before judgment, the plaintiff, who afterwards has become the decree-holder, acquired a vested right in the house to have it sold in satisfaction of his decree.

Once that vested right came into existence, in view of Order XXXVIII Rule 11, it continued upon the passing of the decree and the Rouse is available for sale in satisfaction of the decree because the attachment took place before Punjab Act No. VII of 1934 was enforced in the Union territory of Delhi. The learned counsel for the decree-holder stresses that a vested right of this type cannot be taken away by a statute unless it is intended to operate retrospectively either expressly or by necessary implication, which admittedly is not the case here.

He then says that if the position taken on behalf of the judgment-debtor is sound, it would mean that the house will continue under attachment, though it cannot be put to sale to satisfy the decree of the decree-holder, in perpetuity. This according to him, is a result which could not possibly have been intended by the legislature.

4. It is apparent that stress on behalf of the decree-holder is laid on the matter of attachment of the house in question. No doubt the house was attached before judgment and that after the decree, no further attachment of the same was necessary as the same attachment continued under order XXXVIII Rule 11. But it is immediately clear that attachment before judgment is not an attachment in execution of a decree. To such an attachment Section 60 of the Code of Civil Procedure has no application.

The decree-holder can only claim to have the house put to sale if it Stands attached in the execution of the decree under Section 60 of the Code of Civil Procedure. So a stage must arise at which attachment before judgment must become even though by operation of Law, an attachment in execution of the decree according to Section 60 of the Code of Civil Procedure. Once that happens then the rights of the parties are to be settled according to the provisions of that section.

But it has to be emphasised that that must happen, that is that a stage must arise when an attachment before judgment must become an attachment in execution of the decree, although no fresh proceedings for attachment need be carried out. That stage, in a case of this type, arises when a decree has been passed, but not until an application for its execution has been made. When such an application has been made the attachment before judgment immediately turns into attachment in execution of the decree and no fresh proceedings are necessary for attachment of the same property.

Such being the case for the application of Section 60 of the Code of. Civil Procedure the matter must be viewed only from the date of execution application and from no other date. The rights of the parties can also be seen only from that date for that date alone is relevant under Section 60 of the Code or Civil Procedure. On the date on which the execution application in the present case was made, Punjab Act No, 7 of 1934, amending Section 60 of the Code of Civil Procedure, as already pointed out, had come into force. To the execution of the decree of the decree-holder and the execution application of the decree-holder that Act became applicable immediately as the application was made in the executing Court. Under the amendment the house in question, if the allegations on fact by the judgment-debtor were accepted, was not liable to attachment or sale in execution of the decree of the decree-holder and it follows that under Section 60 of the Code of Civil Procedure the decree-holder could not proceed against the house in execution of his decree.

The attachment before judgment did not become attachment in execution of the decree according to Section 60(1)(ccc) of the Code of Civil Procedure because, if it may be said, such an effect, even by operation of law, has been taken away by the said exemption clause. The attachment before judgment, in the circumstances, will not continue in perpetuity as the learned counsel for the decree-holder contends, but on the execution application having been made by the decree-holder and the house not being liable to attachment and sale in execution before judgment is exhausted and it then ceases to exist.

5. The learned counsel for the decree-holder further points out that even on facts the judgment debtor has not proved that the house falls under Clause (ccc) of Sub-section (1) of Section 60 of the Code of Civil Procedure. But that is a matter which is still to be fought out by the parties and must be fought out by them in the executing court. All that is being decided in this appeal is that if the house in question is proved to fall within the scope of Clause (ccc) of Sub-section (1) of Section 60 of the Code of Civil Procedure the fact that it had been attached before judgment does not take it out of the category of exempted houses under the said clause because on the date on which this attachment was to become an attachment in execution of the decree so that the house be available for sale in satisfaction of the decree, it was not liable to attachment and sale according to the said clause.

6. The appeal is accepted and the case will now go back to the executing Court for disposal on merits. There is no order as to costs in this appeal.


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