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2003 DIGILAW 926 (PNJ)

Kartar Singh v. Union of India

2003-07-10

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - This petition has been directed against the order of the Executive Court, i.e., Senior Sub Judge, Ferozepur dated 20.2.1987, whereby the objection petition filed by the petitioners in execution proceedings has been dismissed. 2. In an arbitration between the Union of India and firm M/s Daffedar Bhagat Singh and Sons, the Union of India obtained an award for Rs. 52,322-43P. on 26.11.2001. This award was made the rule of the Court. As the award was made a rule of the Court at Faridkot, the decree was transferred for execution to the Senior Sub Judge, Ferozepur. In the objection petition filed by the judgment debtor on 22.8.1985, it was pleaded that house No. 157(P), which was sought to be attached for recovery of the decretal amount, was the only residential house belonging to the partners of the firm, who were the sons of Kartar Singh and Dhian Singh of M/s Daffedar Bhagat Singh and wife of the pre-deceased son of Daffedar Bhagat Singh, Gobind Kaur and as such the attachment of the aforesaid house was barred under Sub-clause (ccc) of sub- clause (i) of Section 60 of the Code of Civil Procedure. This objection petition was dismissed by the impugned order and it was held that as the aforesaid house had been purchased for the funds of the firm, it in fact belonged to the firm and not to the objectors and secondly that Manmohan Singh son of Kartar Singh, one of the objectors, owned another property No. 151, situated nearby, it could not be said that this was the only property belonging to the judgment debtor and, therefore, exempted from attachment. 3. Mr. P.N. Aggarwal, the learned counsel appearing for the petitioners has argued that as the decree was undoubtedly in favour of the firm, M/s Daffedar Bhagat Singh and Sons, but the property No. 157(P) stood in the name of Kartar Singh, Dhian Singh and Gobind Kaur, the mere fact that it had been purchased from the funds of the firm would not change the nature of its ownership. He has also pleaded that in view of the judgment of the Honble Supreme Court in S.V. Chandra Pandian & others v. S.V. Sivalinga Nadar and others, 1993(1) Latest Judicial Reports 568, partnership property would vest in all the partners of the firm and as such it could not be said that the property belonged to the firm alone. It has also been urged that the mere fact that Manmohan Singh had another property nearby would not mean that Kartar Singh, Dhian Singh and Gobind Kaur had only one property in their possession and ownership. 4. Mr. Anil Sharma, the learned counsel representing the respondent-Union of India has supported the reasons given by the Executing Court. 5. I have considered the arguments advanced by the learned counsel for the parties and find merit in the revision petition. Item (ccc) of sub-clause (i) of Section 60 of the Code of Civil Procedure is reproduced as under :- "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 this 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." 6. A bare perusal of the aforesaid clause would show that the property belonging to a judgment-debtor though residential cannot be attached when the solitary property was available to him. Undoubtedly a firm would also fall within the category of a judgment-debtor, but it has no legal entity as held by the Honble Supreme Court in the above-cited judgment. In this view of the matter, the property, being the solitary one in the possession and ownership of Kartar Singh, Dhian Singh and Gobind Kaur, would not be subject to the attachment. I am equally of the opinion that merely because Manmohan Singh son of Kartar Singh also occupied in his own right property No. 151, which was situated nearby, would not deprive Kartar Singh or the other two objectors of the protection as Manmohan Singh had his individual right to hold his property. The revision petition is accordingly allowed and the order of the Executing Court dated 20.2.1987 is set-aside and the execution application is dismissed. The revision petition is accordingly allowed and the order of the Executing Court dated 20.2.1987 is set-aside and the execution application is dismissed. It would be, however, open to the Union of India to recover the decretal amount from any other property/security that may be in its possession, if not recovered so far. Petition allowed.