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Ronaq Mal Chimna Mal Vs. Kasturi Mal Lachhman Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 1607 of 1959
Judge
Reported inAIR1961P& H423
ActsTransfer of Property Act, 1882 - Sections 53; Code of Civil Procedure (CPC) - Sections 60(1)
AppellantRonaq Mal Chimna Mal
RespondentKasturi Mal Lachhman Dass and anr.
Appellant Advocate Puran Chand, Adv.
Respondent Advocate J.V. Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredChindamabaram Chettiar v. Sellakumara Goundan
Excerpt:
.....favour of his son would still be a good and valid transfer so far as both the parties to the transfer are concerned, but it cannot affect the rights of the decree-holder......under section 60(1)(ccc) of the code of civil procedure claiming that the house attached by the decree-holder respondent was exempt from attachment on the ground that it was his main residential house. 2. the decree-holder opposed this application and pleaded that the house in dispute was liable to attachment. 3. the pleadings of the parties gave rise to the following issues:- 1. whether the judgment-debtor can file objections regarding the house attached when he had sold the same to joginder singh? 2. if issue no. 1 is proved, whether the house attached is immune from attachment and sale in execution of the decree against the judgment-debtor? 3. whether the judgment-debtor is entitled to pay the decretal amount in instalments; if so, in what amount? 4. the executing court dismissed.....
Judgment:

P.C. Pandit, J.

1. The judgment-debtor in the present case, who is the appellant before me, filed objections under Section 60(1)(ccc) of the Code of Civil Procedure claiming that the house attached by the decree-holder respondent was exempt from attachment on the ground that it was his main residential house.

2. The decree-holder opposed this application and pleaded that the house in dispute was liable to attachment.

3. The pleadings of the parties gave rise to the following issues:-

1. Whether the judgment-debtor can file objections regarding the house attached when he had sold the same to Joginder Singh?

2. If issue No. 1 is proved, whether the house attached is immune from attachment and sale in execution of the decree against the judgment-debtor?

3. Whether the judgment-debtor is entitled to pay the decretal amount in instalments; if so, in what amount?

4. The executing Court dismissed the objection petition holding that the judgment-debtor had no locus standi to file the Present objection petition, because he had sold his house to his son Joginder Singh, and that the house in question was not immune from attachment and sale in execution of the decree against the judgment-debtor.

5. The judgment-debtor went up in appeal against the judgment of the executing Court and the learned Additional District Judge dismissed the same and confirmed the findings of the executing Court.

6. It appears that after the decree-holder had obtained his decree against the judgment-debtor, the judgment-debtor sold this house to his son with a view to save it from attachment. On this the decree-holder brought a suit under Section 53 of the Transfer of Property Act to avoid this sale. This suit was decreed and after that the decree-holder attached the house in question.

7. Learned counsel for the appellant submits that the result of the decree-holder's suit under Section 53 of the Transfer of Property Act was thatthe sale of the house that he had made in favour of his son was annulled and the judgment-debtor again became the owner of this house and therefore, he could file objections under Section 60(1)(ccc) of the Code of Civil Procedure.

8. According to the Courts below, after the sale of the house in favour of the son, the judgment-debtor had no right, title or interest left in the house and, therefore, he could not file the objection petition under Section 60(1)(ccc) of the Code of Civil Procedure. The effect of the decree under Section 53 of the Transfer of Property Act was that it would enure for the benefit of the decree-holder and not for the benefit of the judgment-debtor himself.

9. Learned counsel for the appellant relied on a ruling reported as Dhani Ram v. District Official Receiver, Amritsar, AIR 1943 Lah 19 (FB). But I find that that was a case in which the suit was brought not under Section 53 of the Transfer of Property Act, but it was a case under Section 53 of the Provincial Insolvency Act where the words are different and the transfer in that case was annulled by the Court as provided in Section 53 of the provincial Insolvency Act. In a case, which is governed by Section 53 of the Transfer of Property Act, the transfer is not annulled. The result of the suit under Section 53 of the Transfer of Property Act is that the transfer would not affect the rights of the creditor but it remains a good transfer so far as the judgment-debtor is concerned.

10. In a Full Bench judgment of the Madras High Court, Chindamabaram Chettiar v. Sellakumara Goundan, AIR 1941. Mad 903, it was stated as follows:-

In a case where a debtor alienates his property under circumstances which render it voidable by the creditors under Section 53, Transfer of Property Act, the alienation is binding on the debtor. If avoided by the creditors who alone can do so, and there is a surplus, it goes to the vendee. The title to the property continues to be in the vendee subject only to the rights of the creditors.'

11. As I have already mentioned above, the result of the suit under Section 53 of the Transfer of Property Act is that the transfer by the judgment-debtor in favour of his son would still be a good and valid transfer so far as both the Parties to the transfer are concerned, but it cannot affect the rights of the decree-holder.

12. In view of what I have said above, I bold that the judgment-debtor in this case could not file objections under Section 60(1)(ccc) of the Code of Civil Procedure.

13. In the result, there is no merit in this appeal which is hereby dismissed with costs.


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