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2012 DIGILAW 1550 (PNJ)

State Bank of Patiala v. Surjit Singh

2012-10-31

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) — In this revision petition filed under Article 227 of the Constitution of India, decree holder (DH), State Bank of Patiala has assailed orders dated 22.4.2010, Annexure P/2, dated 13.8.2010, Annexure P/3 and dated 26.8.2010 Annexure P/4 passed by the executing court. 2. Suit filed by petitioner against respondents was decreed vide judgment and decree dated 10.6.2003, Annexure P/1 to the following effect:- “In the light of my above discussion on very issues the suit of the plaintiff is hereby decreed with cost against defendants and the plaintiff bank is entitle to recovery Rs 1,64,697/- alongwith pendente lite and future interest at the rate of 12½ % P.A. with quarterly rest from the defendants and a preliminary decree is passed in favour of plaintiff against defendant and defendants are directed to make the payment within 3 months from today and they are jointly and severally liable to make the payment of the decretal amount alongwith interest referred above, failing which this preliminary decree will automatically become final decree and the plaintiff bank will be entitled to recover the decretal amount alongwith interest referred above by sale of mortgage property and other immovable/moveable property of the defendants and by sale of hypothecated vehicle bearing registration No. HR-37D-0119 and the defendants are jointly and severally liable to make the payment. Decree sheet be prepared accordingly. File is consigned to record room after due compliance.” 3. Petitioner filed execution petition for executing the said decree. In the execution petition, the petitioner moved application for sale of mortgaged property. Respondents/Judgment debtors (JDs) resisted the said application by alleging that the mortgaged property being residential house cannot be sold. Learned executing court vide impugned order Annexure P/2 observed that the residential house is not liable to be attached under section 60 of the Code of Civil Procedure (in short, CPC) and consequently, application moved by petitioner for sale of the mortgaged house was dismissed. Application moved by petitioner for review of the said order was dismissed by the executing court vide order Annexure P/3. Thereafter the executing court dismissed the execution petition itself vide order Annexure P/4 due to non filing of list of any other property of JDs for attachment and sale. Feeling aggrieved, DH has filed this revision petition. 4. I have heard learned counsel for the parties and perused the case file. 5. Thereafter the executing court dismissed the execution petition itself vide order Annexure P/4 due to non filing of list of any other property of JDs for attachment and sale. Feeling aggrieved, DH has filed this revision petition. 4. I have heard learned counsel for the parties and perused the case file. 5. Counsel for the petitioner contended that the petitioner was not seeking attachment of the house in question but was seeking sale thereof pursuant to decree Annexure P/1 being mortgaged property and therefore, section 60 CPC was not attracted. It was argued that even under section 60 CPC, the mortgaged property is not exempted from attachment even if it be the sole residential house of JD. 6. There is considerable merit in the aforesaid contentions which could not be countered by counsel for the respondents. Section 60(i)(ccc) of CPC, as inserted in Punjab by amendment, reads as under:- “Provided that the following particulars shall not be liable to such attachment or sale namely:- 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.” 7. Thus from the bare provision itself, it is manifest that exemption of one main residential house from attachment is not available to any property specifically charged with the debt sought to be recovered. In the instant case, the house sought to be sold in execution is the mortgaged property specifically charged with the debt sought to be recovered. Consequently, the said house is not exempted from attachment and sale under the aforesaid provision. The executing court, thus, committed grave illegality and jurisdictional error in passing impugned orders Annexures P/2 and P/3 and resultant order Annexure P/4. The said orders are completely perverse and illegal. 8. The matter may also be examined from another angle. Decree Annexure P1 has attained finality. It provides for recovery of the decretal amount by sale of the mortgaged property as well as other property of the JDs. The said orders are completely perverse and illegal. 8. The matter may also be examined from another angle. Decree Annexure P1 has attained finality. It provides for recovery of the decretal amount by sale of the mortgaged property as well as other property of the JDs. In view thereof also, the impugned orders could not have been passed by the executing court being in violation of the decree sought to be executed. 9. Counsel for the respondents submitted that respondents are ready to pay the decretal amount in installments. However, this submission has been made for the sake of submission only. The respondents do not intend to pay the decretal amount. In this regard, reference may be made to observation in order dated 22.4.2010, Annexure P/2 as referred to by counsel for the respondents himself. According to observation in the said order, JDs undertook to pay the decretal amount in installments within three months. However, since then more than 30 months (instead of three months) have lapsed but the respondents/JDs have not paid the decretal amount. It is, thus, manifest that respondents have no intention of paying the decretal amount and they are simply delaying execution of the decree which has already attained finality. 10. For the reasons aforesaid, the instant revision petition is allowed. Impugned orders Annexures P/2 to P/4 passed by the executing court are set aside. Execution petition is restored to the files of the executing court. The executing court shall now proceed with the execution proceedings in accordance with law for recovery of decretal amount by sale of mortgaged house and if necessary by sale of other property of JDs. Parties are directed to appear before the executing court on 19.11.2012.