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2009 DIGILAW 453 (PNJ)

Baljit Singh v. Amrik Singh

2009-03-06

RAKESH KUMAR GARG

body2009
Judgment Rakesh Kumar Garg, J. 1. Baljit Singh Judgment debtor has filed this revision petition, challenging the impugned order dated 22.09.2008 (Annexure P-2), passed by the executing Court whereby his objections have been dismissed. 2. As per the averments made in this petition, civil suit No. 141 of 26.03.2003, filed by the respondent for possession by way of specific performance of the agreement dated 6.6.2002 of the suit property detailed as 3 kanal 16 marla being 1/5 share out of 19 kanal comprised in khewat khatoni No. 149/160, Khasra Nos. 44//22/2, 23/2, 48//3 as per jamabandi for the year 1996-97 of village Tunga Heri, Tehsil Raikot, District Ludhiana and a plot measuring 0-11 k.m. being 1/3 share out of 1 kanal 14 marla Khewat No. 1335, Khatoni No. 1382, Khasra No. 531 and Khewat No. 1470, Khatoni No. 1517 Khasra No. 582 and 581/1/1 as per jamabandi for the year 1997-98 of village Barundi, Tehsil Raikot, District Ludhiana was decreed by the Court of Civil Judge (Junior Division), Ludhiana, vide her judgment and decree dated 1.2.2007 and the petitioner was directed to execute the sale-deed of the suit land in favour of the plaintiff-respondent within 3 months on deposit of balance sale consideration. 3. Plaintiff-respondent/Decree Holder filed execution application, in which notice was issued to the petitioner, who filed his objections vide Annexure P-1, which were dismissed by the executing Court vide impugned order dated 22.09.98 Annexure P-2. 4. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the petitioner had specifically taken objections to the effect that he does not own any other house or land except the subject-matter of the execution and the same can neither be attached nor sold under the provisions of Code of Civil Procedure. However, while dismissing his objections argument of the petitioner has not been considered in this regard and therefore the impugned order dated 22.09.98 is liable to be set aside. 5. Relying upon documents Annexures P-1 to P-9, the petitioner has sought to raise the argument that the property sought to be attached and sold in execution is liable to be exempted under clause (ccc) as inserted by the Punjab Amendment of proviso to Section 60(i) of C.P.C., being the only residential house of the petitioner. 6. I have heard the learned counsel for the parties. 7. 6. I have heard the learned counsel for the parties. 7. It is useful to reproduce relevant part of Sections 51 and 60 (as amended in the State of Punjab) of the C.P.C. which are as under : "Section 51 : Powers of Court to enforce execution - Subject to such conditions and limitations as may be prescribed, the Court may, on the application of to decree-holder, order execution of the decree - "(a) by delivery of any property specifically decreed. (b) by attachment and sale or by sale without attachment of any property. (c) to (e) xxx xxx xxx xxx xxx " Section 60 : Property liable to attachment and sale in execution of decree.- (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf : Provided that the following particulars (properties ?) shall not be liable to such attachment or sale, namely : "(a) to (cc) xxx xxx xxx (ccc) 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 : Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered." (d) to (i) xxx xxx xxx xxx xxx xxx xxx xxx " Thus, it may be noticed that different modes of execution of a decree are provided under Section 51 of C.P.C. and a decree can be executed by any such mode as prescribed. Section 51(a) provided that a decree for possession of a property can be executed by delivery of any property specifically decreed. Section 51(b) provides that a decree can also be executed by attachment and sale of any property. 8. Section 51(a) provided that a decree for possession of a property can be executed by delivery of any property specifically decreed. Section 51(b) provides that a decree can also be executed by attachment and sale of any property. 8. Sub-section (1) of Section 60 of the Code of Civil Procedure lays down the list of various properties as mentioned therein which are liable for attachment and sale in execution of a decree. Proviso to this Section, however exempts various properties from execution as mentioned in the various clauses thereunder. Clause (ccc), which was inserted in the proviso of sub-Section 1 of Section 60 of C.P.C. by way of amendment in the State of Punjab, exempts one main residential house of the judgment-debtor from attachment and sale in execution of a decree which is being executed under Section 51(b) of C.P.C. 9. It is also relevant to mention that in the case of Shambhoo Khimji v. Baloch Roze, A.I.R. (34) 1947 Sind 32, it was held as under : "Section 60 applies only to money decrees and not generally to all decrees. The words attachment and sale in S. 60(1) itself do not apply appropriately to the enforcement of mortgages or liens. The fact that the words `attachment or sale occur in the proviso to that section cannot extend the scope of that section, as according to ordinary canons of construction, a proviso to a section is to be taken only as limiting the operation of the section. Consequently neither S. 60(1) nor the proviso applies to decrees other than money decrees." 10. In the case of Firm Ganga Ram v. Firm Jai Ram, A.I.R. 1957 Punjab 293, it was held as under : "In other sense residential house is a dwelling house as distinct from a house of business warehouse, office, shop etc. Residential house is a building used as a place of abode, in which, people reside or dwell in contradistinction to one which is used for commercial or business purposes." 11. In the case of Amar Singh v. Puran Chand, 1973 P.L.J. 337, it was held that proviso to sub-Clause (ccc) of Section 60(1) C.P.C. will not extend to any property specifically charged with the debt sought to be recovered. In the case of Amar Singh v. Puran Chand, 1973 P.L.J. 337, it was held that proviso to sub-Clause (ccc) of Section 60(1) C.P.C. will not extend to any property specifically charged with the debt sought to be recovered. It was further held in this judgment that "debt" means a sum payable in respect of a liquidated money demand recoverable by action and not a decretal and relevant para of the judgment is as under : "The proviso to, sub-clause (ccc) provides that the protection afforded by sub-clause (ccc) of proviso to sub-section (1) of Section 60 of the Code, will not extend to any property specifically charged with the debt sought to be recovered. Thus the residential house can be sold only in one contingency, namely, if the charge has been created specifically on that house regarding debt sought to be recovered. The question is as to what `debt means. `Debt has been defined in Strouds Judicial Dictionary 1952 Edition, at page 733, as "a sum payable in respect of a liquidated money demand, recoverable by action." In Law Lexicon by Venkataramaiya, 1971 Edition, at page 302, `debt has been defined "that which is due from one person to another whether money, goods or services, that which one person is bound to pay to another or to perform for his benefit, things owed; obligation; liability. "If a decree has been passed regarding some amount, that ceases to be a debt and becomes a decretal amount. A similar matter came up before a Division Bench of this Court at Delhi in Umrao Singh v. Nikku Mal Gupta, A.I.R. 1966 Punjab 412, wherein it was observed that a claim for damages is not a debt. It was further observed that the word `debt in the expression "the debt sought to be recovered" in clause (ccc) of the proviso to sub- section (1) of section 60 of the Code is not a judgment debt or decretal debt. It has also been observed that it is a debt recoverable by action and this expression thus concerns a stage before a decree for such a debt is obtained in the action." 12. It has also been observed that it is a debt recoverable by action and this expression thus concerns a stage before a decree for such a debt is obtained in the action." 12. Thus, from the conjoint reading of the aforesaid judgment and provisions of C.P.C. it can be inferred that the provisions of sub clause (ccc) of proviso to Section 60(i) C.P.C. are applicable only to money decrees and the protection afforded is to a residential house which is a dwelling unit in which the judgmenbtor is residing and the aforesaid house is not charged specifically for the debt sought to be recovered and exemption sought on the basis of sub Clause (ccc) of proviso to Section 60(1) C.P.C. is not available in an execution of a decree where execution is being made by delivery of the property decreed. In the case in hand execution of decree for possession of suit land by way of specific performance of the agreement is sought by execution of sale deed of the property decreed in favour of the decree holder through the intervention of the Court and which can be executed only under Section 51(a) of the Act and the exemption provided under sub-clause (ccc) of the proviso to Section 60(1) is not attracted as the same will apply only if a money decree is sought to be executed under Section 51(b) by way of attachment and sale of property for a debt sought to be recovered. 13. Even otherwise, the contention of the petitioner is misconceived. A perusal of decree dated 01.02.2007 passed in favour of the plaintiff- respondent, whereby defendants were directed to execute the sale-deed in favour of the plaintiff-respondent for the property in dispute shows that the same is described as land and plot and it is no where mentioned that the same is a residential house. Moreover, the evidence sought to be relied upon does not connect the suit property in any manner to the residential house of petitioner as shown in Annexuers P-3 and P-4. For the reasons referred above. I find no merit in this revision petition.