Punjab-Haryana High Court
Pargat Singh & Anr vs Gurmail Kaur & Ors on 8 December, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.12.15 17:28
I attest to the accuracy and
authenticity of this document
Chandigarh
CR No.5745 of 2013 [1]
******
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5745 of 2013
Date of decision:08.12.2014
Pargat Singh and another ...Petitioners
Versus
Gurmail Kaur and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. Harsh Aggarwal, Advocate,
for the petitioners.
Mr. M.C.Dhaliwal, Advocate,
for the respondents.
*****
RAKESH KUMAR JAIN, J.
The petitioners entered into an agreement to sell with Nachhattar Singh, predecessor-in-interest of the respondents, on 03.01.1998 in respect of 18 Bigha 4 Biswas of land @ `38,500/- per Bigha and paid a sum of `3,30,000/- as earnest money. The sale deed was to be executed on 31.12.1998. Before the date of execution of the sale deed, the said Nachhattar Singh suffered a collusive decree dated 14.10.1998 in favour of Ranjit Singh (respondent no.5) in a Civil Suit No.219 of 20.07.1998 in respect of the suit land on the basis of an agreement to sell dated 11.06.1997. The said suit was decreed ex parte. Respondent no.5 deposited the balance sale consideration in the Court and the sale deed was executed and registered in his favour through the process of the Court on 04.12.1998.
The petitioners, after coming to know about the fraud played by VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [2] ****** Nachhattar Singh, immediately filed Civil Suit No.296 of 22.10.1998 against him for possession by way of specific performance and also challenged the decree suffered by him in favour of respondent no.5. During the pendency of the Civil Suit, Nachhattar Singh died and his legal heirs (respondents no.1 to 4) were brought on record. The said suit was decreed by the trial Court for an alternative relief of recovery of earnest money vide judgment and decree dated 04.06.2004.
The petitioners then filed Execution Petition No.84 of 20.11.2004 in which the amount of `2,55,000/- deposited by Ranjit Singh on 04.12.1998, plot no.1 containing tin shed and courtyard and plot no.2 containing two rooms and courtyard situated in village Bhullerheri were ordered to be attached. The warrants of attachment were issued but it was reported that the amount of `2,55,000/- deposited by Ranjit Singh on 04.12.1998 was already withdrawn by Nirbhai Singh (Judgment Debtor No.3).
The judgment debtors filed the objection on 02.04.2005 under Order 21 Rule 58 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") pleading that plot no.1 is a part of the only residential house and cannot be attached in terms of Section 60(1)(ccc) of the CPC and as far as plot no.2 is concerned, the same was purchased by them on 07.01.2000 from Sukhdev Singh and is their self acquired property. The objection petition was contested by the petitioners by filing reply on 11.06.2005 and on the pleadings of the parties, the Executing Court framed the issues and allowed the parties to lead their evidence. VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [3]
****** The objection filed by the judgment debtors was allowed by the Executing Court on 08.12.2008 against which the petitioners filed the appeal which was dismissed on 15.07.2013. Besides this, the petitioners had also filed an application on 13.12.2010 for attaching the salary of Judgment Debtor Nos.2 and 4, contested by them by reply dated 16.11.2011 on the ground that the salary cannot be attached in view of Section 60 of the CPC and the said objection of the judgment debtors was upheld by the Executing Court vide its order dated 18.08.2012 which has also been assailed in this revision petition.
Thus, three orders dated 08.12.2008, 15.07.2013 and 18.08.2012 have been challenged in this revision petition, inter alia, on the ground that if the amount of `2,55,000/-, which was deposited by Ranjit Singh, has already been withdrawn and plot no.2 is a self-acquired property of the judgment debtors, plot no.1 is still belonging to Nachhattar Singh which was inherited by the judgments debtors/respondents and, therefore, the said property is liable to be attached and sold for the purpose of recovery of the amount of the petitioners which has admittedly been received by Nachhattar Singh at the time of agreement to sell.
Counsel for the respondents has argued that there is no error in the order of the Courts below because plot no.1 belonging to Nachhattar Singh had devolved upon them but it being a cattle shed and a part of the residential house is protected in terms of Section 60(1)(ccc) of the CPC, as amended by the State of Punjab. It is further submitted that the Executing Court, on the pleadings of the parties, framed as many as three issues and VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [4] ****** while deciding issues no.1 and 2 together, observed that plot no.2, which is a tin shed shown in the site plan Ex.D4, is a cattle shed lies at the far end of the residential house and was apparently being used for tethering cattle and as per Section 60(1)(ccc) of the CPC, the open spaces or enclosures belonging to an agriculturist used for tying cattle, parking carts or stacking fodder or manure are exempted from attachment. It is further submitted that the said order of the Executing Court has been upheld by the Appellate Court and thus no interference is called for in this revision petition.
On the other hand, counsel for the petitioners has argued that plot no.2/tin shed was owned by Nachhattar Singh and had devolved upon the respondents by way of natural succession but the plea of Section 60(1)(ccc) of the CPC is available only to the judgment debtor and is no more available to the heirs of Nachhattar Singh after his death. In support of his submission, he has relied upon a decision of this Court in the case of Shri K.L.Bawa v. M/s Basant Textiles, 1982 PLR 258.
I have heard learned counsel for the parties and perused the record with their able assistance.
Undisputedly, the predecessor-in-interest of the defendants, namely, Nachhattar Singh had entered into an agreement to sell the land measuring 18 Bigha 04 Biswas with the petitioners/decree-holders on 03.01.1998 @ `38,500/- per Bigha and received a sum of `3,30,000/- as earnest money. The sale deed was to be executed on 21.10.1998 but before that Nachhattar Singh transferred 18 Bigha 04 Biswas of land, including the land, he had agreed to sell to the petitioners, by way of Civil Suit No.219 of VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [5] ****** 20.07.1998 in favour of Ranjit Singh (respondent no.5). He did not return the amount of earnest money received from the petitioners. The petitioners filed suit for specific performance in which the decree for alternative relief of recovery of earnest money was granted in their favour on 04.06.2004 and the said decree is under execution but Nirbhay Singh S/o Nachhattar Singh had even withdrawn the amount of `2,54,000/- deposited by Ranjit Singh towards the balance sale consideration, therefore, the petitioners could not get that amount.
There are two properties in possession of the defendants. One property is the tin shed which has devolved upon them after the death of Nachhattar Singh by way of natural succession and the other property is alleged to have been purchased by them. We are concerned in this case with the property which has devolved upon the judgment debtors/respondents after the death of Nachhattar Singh as the legal heirs of Nachhattar Singh are bound to pay the decretal amount out of it to the decree-holders but they have taken the plea that as per Section 60(1)(ccc) of the CPC, the said plot/tin shed is also un-attachable in the execution because it is a part of the residential house which is the self-acquired property of the respondent.
As a matter of fact, the petitioners have been cheated not only by Nachhattar Singh who had taken an advance of `3,30,000/- from them and did not perform his part of the contract and rather transferred the suit property in favour of Ranjit Singh by way of a decree but also by his heirs who have withdrawn the amount of balance sale consideration deposited by Ranjit Singh and are taking the plea that property left behind by Nachhattar VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [6] ****** Singh cannot be attached and sold.
In order to appreciate the argument raised by learned counsel for the respondents, it would be relevant to refer to Sections 60(1)(c), (cc) and (ccc) of the CPC, which are as under:-
"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, movable 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 properties shall not be liable to such attachment or sale, namely:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) house and other buildings (with the materials and the sites thereof and the land immediately VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [7] ****** appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and not proved by the decree-holder to have been let out on rent or lent to persons other than his father, mother, wife, daughter-in-law, brother, sister or other dependents or left vacant for a period of a year or more;
(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of transport of draught cart and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;
(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.
xxx xxx xxx" VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [8] ******
Section 60 of the CPC deals with attachment and sale of the property in execution of the decree but there are certain exemptions in which Section 60(c) of the CPC which provides that the houses and other buildings with the material 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 cannot be attached and sold. In Section 60(1)(c) of the CPC, there are further additions by the State of Punjab, which is referred here-in-above, in which we are concerned with Section 60(1)(ccc) of the CPC which provides that one main residential house and other buildings attached to it belonging to the judgment debtors other than an agriculturist and occupied by him is also exempted.
However, in the present case, the protection claimed by the defendants is not available to them as held by this Court in Shri K.L.Bawa's case (supra) in which it has been held that the protection under Section 60(1)(ccc) of the CPC is available to the judgment debtor and not to his heirs.
The facts of the said case were that a decree was obtained by M/s Basant Textiles for recovery of some money against the petitioner K.L.bawa in the year 1977. In the execution, house no.70, Sector 18-A, Chandigarh belonging to K.L.Bawa was attached. He filed the objections under Section 47 of the CPC claiming the protection of Section 60(1)(ccc) of the CPC but the said objection was dismissed by the Executing Court on 29.09.1980 against which the revision petition was filed. During the VINOD KUMAR 2014.12.15 17:28 I attest to the accuracy and authenticity of this document Chandigarh CR No.5745 of 2013 [9] ****** pendency of the revision petition, Shri K.L.Bawa died on 14.10.1981 and his wife Jagdish Rani was impleaded as his legal representative by way of an application. It was held by this Court that K.L.Bawa was the judgment-
debtor against whom the money decree was passed and the protection from attachment of one main residential house under Section 60(1)(ccc) of the CPC was available to him in person and since his widow Jagdish Rani is not a judgment-debtor, therefore, she was not entitled to claim protection in terms of Section 60(1)(ccc) of the CPC. It was further held that the protection under Clause (ccc) available to the judgment debtor came to an end with his death on 14.10.1981 and the said protection being available to the deceased in person would not pass on to his widow as his legal heir.
In the present case also, Nachhattar Singh was the judgment- debtor and his heirs cannot take the plea of protection under Section 60(1)(ccc) of the CPC after his death and are liable to abide by the decree insofar as the property of judgment-debtor is concerned.
Thus, in view of the aforesaid discussion, the present revision petition is found to be meritorious and the same is hereby allowed and the impugned order is set aside.
December 08, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE
Note: Whether the judgment should be reported in the Digest? Yes