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S. Rau's Indian Administrative Service Study Circle Vs. Sushila Nanda and Ors. (17.12.1980 - DELHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 171 of 1980 and 60 of 1978
Judge
Reported in19(1981)DLT174; 1981RLR45
ActsCode of Civil Procedure (CPC), 1908 - Sections 60(1) and 97(1); Constitution of India - Article 254
AppellantS. Rau's Indian Administrative Service Study Circle
RespondentSushila Nanda and Ors.
Advocates: Arun Mohan and ; R.P. Bansal, Advs
Cases ReferredCarest v. Smt. Ram Devi
Excerpt:
.....debtor occupied by him was exempted from attachment in view of proviso (ccc) of 60 (1) of the civil procedure code, 1908 - it was held that, the proviso was inconsistent with the code in as much as now there was no exemption from attachment in respect of main residential house as proviso (ccc) of section 60 (1) of the code, stood repealed by section 97 (1) of the amending act, 1976. - - (b) secondly even if there is inconsistency section 4(1) of the code protects provisions of special and local laws like punjab relief of indebtedness act and thereforee, exemption granted by section 35 of the said act by way of inserting proviso (ccc) must be given effect to. this is clear from the full bench judgment of this court (supra). the words which have been reproduced already clearly.....g.r. luthra, j. (1) main question for determination is if section 97(1) of the code of civil procedure (amendment) act 1976 (hereinafter referred to as the amending act) repealed proviso (ccc) of sub section (1) of section 60 of the code of civil procedure (in short code) introduced by way of amendment of the said code by section 35 of the punjab relief of indebtedness act is extended to delhi. (2) the aforesaid proviso (ccc) to sub-section (1) of section 60 reads as under:- 'provided that the following particulars shall not be liable to such attachment or sale, namely :- (ccc) one main residential house and either 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.....
Judgment:

G.R. Luthra, J.

(1) Main question for determination is if Section 97(1) of the Code of Civil Procedure (Amendment) Act 1976 (hereinafter referred to as the Amending Act) repealed proviso (ccc) of Sub Section (1) of Section 60 of the Code of Civil Procedure (in short Code) introduced by way of amendment of the said Code by Section 35 of the Punjab Relief of indebtedness Act is extended to Delhi.

(2) The aforesaid proviso (ccc) to sub-section (1) of Section 60 reads as under:-

'PROVIDED that the following particulars shall not be liable to such attachment or sale, namely :- (ccc) one main residential house and either 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 ; Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered'.

(3) Circumstances, under which protection of aforesaid proviso is invoked are as follows. Dr. S. Rau (hereinafter referred to as the Decree- holder) brought a suit on 29th March 1973 praying for a number of reliefs against Smt. Sushila Nanda and Shri Manmohan Nanda (hereinafter referred to as judgment-debtors). 'A compromise was arrived at and a decree was passed on 3rd November 1977 in favor of decree-holder and against judgment-debtors. By virtue of that decree the judgment debtors were liable to pay a sum of Rs. 37,000.00 . In execution of the decree, house No. 49/28 East Patel Nagar, New Delhi belonging to Manmohan Nanda, judgment-debtor was attached. Manmohan Narida brought an objection petition being E.A. No. 171 of 1980 to the effect that as the said property was his main residential house occupied by him same was exempt from attachment in view of proviso (ccc) of Sub-section (1) of Section 60 of the Code of Civil Procedure. It was also pleaded,by him that the land under house was lease hold property on account of which Land ..and, Building. ..Department who was lesser should be given notice and that property could not be sold without permission under the provisions of Urban Land (Ceiling and Regulation) Act.

(4) The aforesaid' objection petition was contested by the decree-holder. Decree 'holder' 'did' not file any written' reply but the counsel for the decree holder stated that it be assumed for the sake of deciding objections that House No. 49/28 East Patel Nagar, New Delhi was the only residential house belonging . to the objector and occupied by him and that even the same was not exempt from attachment. Fallowing issue was framed on August 8, 1980 :- Is the house No. 49/28 East Patel Nagar, New Delhi exempt from 'attachment as alleged by the objector-J. D.

(5) It is rightly submitted by counsel for the decree holder that proviso (ccc) aforesaid stands repealed by Section 97(1) of the Amending Act which reads as under :-

'97(1)Any amendment made, or any provision inserted in the principal Act by a State Legislature of a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.'

It was by way of Section 35 of Punjab Relief of Indebtedness Act that amendment of the Code was made and the aforesaid proviso was inserted. That proviso is inconstent with the present Code in as much as now there is no exemption from attachment in respect of main residential house of every one and the exemption is only in the following words as contained in proviso (e) of Sub-Section I of Section 60 :-

'PROVIDED that the following particulars shall not be liable to such attachment or sale, namely................................................. (e) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist or a labourer or a domestic servant and occupied by him;'

Hence the proviso (ccc) relied upon by the judgment-debtor stands re- pealed.

(6) The effect of Section 97(1) of the Amending Act was considered by full bench of this court in M/s. Printeak Machinery Ltd., New Delhi v. Mis. Jay Kay Paper Cometers, New Delhi, : AIR1979Delhi217 and the following was held which occurs in para 16 of the judgment :

'SECTION97(1) of the amending Act was intended to disencumber the Code of accretions gathered over the years due to amendments made by State Legislatures and High Courts, except to the extent that they were consistent with the Code as amended by the Act. In other words, the purpose of the amending Act was to present a renovated Code as the new starting point, as had also been done in 1908. It was not the purpose to repeal all other and independent laws pertaining to procedure. Historically the original side of a High Court had always been treated on a special footing. As S. 129 shows, it has always been governed by its own rules in preference to those in the Code. The amending Act contains no indication that it was intended to depart from that position. Had there been any such intention, the obvious course was to amend S. 129. But it has remained fully intact. So has S. 4 of the Code and even S. 122.'

In view of that full bench judgment all the amendments made by State legis- lature which are inconsistent with the present Code stand repealed.

(7) The learned counsel for the judgment-debtor submits as under : (a) Firstly proviso (ccc) is consistent with the present proviso (e) reproduced above in asmuch as the former merely enlarges the scope of amendment from attachment and does not nullify the exemption granted by the letter. (b) Secondly even if there is inconsistency Section 4(1) of the Code protects provisions of special and local laws like Punjab Relief of Indebtedness Act and thereforee, exemption granted by Section 35 of the said Act by way of inserting proviso (ccc) must be given effect to. Section 4(1) of the Code reads as:under :-

'4(1)In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise effect any special or local law now in force or any special jurisdiction or power conferred, of any special form of procedure prescribed by or under any other law for the time being in force.'

(8) The learned counsel for the judgment-debtor relied upon a full bench judgment of Punjab & Haryana High Court in Carest v. Smt. Ram Devi & others,.A.I.R. 1978 P. & H. 137. In that case it is held that Section 41 of the Punjab Courts Act, which provides for filing of second appeal in, the High Court, must be given precedence over the present Section 100 of the Code in view of the protection of special and lo:al Jaws afforded , Section 4(1) of the Code. It may be mentioned that Section 41 of the Punjab Courts Act is liberal in the matter of Regular Second Appeals to the High Courts inasmuch as under that provision, inter alia, an appeal can be filed on a question of law whereas Section 100 provides for second appeals on substantial questions of law only and requires that such question of law should be framed at the time of the admission of the appeal. The learned counsel also relie 1 upon the observations of Full Bench of this Court in the judgment mentioned above whereby it is laid down that Delhi High Court (Original Side) Rules must prevail over the provisions of the Code inasmuch as those rules were protected by Section 4(1) of the Code and they did not stand repealed by Section 97(1) of the Amending Act.

(9) But the aforesaid submissions of the learned counsel are obviously misconceived. The very enlargement of the scope of exemption from attachment and sale of particular property causes inconsistency. Proviso (ccc) protects any residential house occupied by judgment debtors from attachment and sale whereas proviso (e) grants exemption to only limited type of property which means that the former nullifies the effect 'of the latter inasmuch as it takes away implied permission of the letter to attach and sale property other than once mentioned in the letter.

(10) In the present case Section 4(1) of the Code has no application. Section 4(1) of the Code has no conflict with Section 97(1) of the Amending Act. Section 97(1) hits at amendment of the Civil Procedure Code made by Local or special laws whereas Section 4(1) give protection to such local or special laws which did not bring about any amendment of the Civil Proce- dure Code. This is clear from the Full Bench judgment of this Court (supra). The words which have been reproduced already clearly indicate that all the accretions made to the Civil Procedure from time to time. by-the State Legis- lature or by the High Courts if they are not consistent with the present Code shall stand represented. In that case Original Side Rules were held to be not repealed because they did not bring about any amendment in the Code of Civil Procedure and had independent way. That was why it was held that they stood protected by the provisions of Section 4(1) of the Code.

(11) The Full Bench judgment of the Punjab and Haryana High Court has no application, in the present case. Section 41 of the Punjab Courts Act never brought any amendment of any provision of the Civil Procedure Code and stands independently of the latter. That is why it was held to-be pro- tected by the provisions of Section 4(1) of the Code.

(12) Lntheprcsentcase, 35 does not make any provision for any exemption from attachment or sale of any property. It brought about amendment of Section 60 and, inter alia, inserted the aforesaid proviso (ccc). Hence that proviso is not protected by Section 4(1) of the Code.

(13) There is no dispute that the Amending Act must have precedence over the State Laws. Seventh Schedule of the Constitution of India contains three lists for legislation, which are 'Union List', 'concurrent list' and state list. According to Article 246 of the Constitution Parliament can legislate rules in respect to subjects enumerated in 'union list' and 'concurrent list while state legislature can make laws with respect to 'state list' and under certain circumstances with respect to 'concurrent list'. According to Article 254 of the Constitution any law made by the Central Legislature on a subject in the concurrent list has precedence as against State law to the extent of inconsistency. Civil Procedure is mentioned at Item No. 13 in the 'concurrent list' and, thereforee, amending Act, which was passed by the parliament, must be given effect to as against amendment in the Civil Procedure Code brought about by Punjab Relief of Indebtedness Act enacted by erstwhile Punjab legislature and extended to Delhi.

(14) Hence House No. 49/28 East Patel Nagar, New Delhi is not exempt from attachment. Issue is decided accordingly in favor of Decree- holder.

(15)


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