Punjab-Haryana High Court
Gurdeep Singh vs Balbir Singh And Others on 22 July, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Civil Revision No.3720 of 2009 1
In the High Court of Punjab and Haryana, at Chandigarh.
Civil Revision No.3720 of 2009
Date of Decision: 22.7.2010
Gurdeep Singh
...Petitioner
Versus
Balbir Singh and Others
...Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Ms. Bindu Goel, Advocate
for the petitioner.
Mr. P.K.Longia, Advocate
for respondent No.1.
None for respondents No. 2 to 6.
Kanwaljit Singh Ahluwalia, J. (Oral)
Gurdeep Singh, legal representative of Gurmail Singh, judgment debtor, has approached this Court for setting aside the order dated 22.1.2007 (Annexure P4), passed by the Additional Civil Judge (Senior Division), acting as the Executing Court, Samrala, District Ludhiana, whereby the objections, raised by the petitioner that the residential house inherited by him, being exempted under Section 60(i) (ccc) CPC, cannot be attached, were rejected. The said order was made subject matter of appeal and the Court of Additional District Judge (Fast Track Court), Ludhiana, vide its order dated 12.2.2009 (Annexure P6), upheld the order under appeal (Annexure P4). Thus, the objections, Civil Revision No.3720 of 2009 2 raised by the petitioner, were rejected.
Hence, the present revision petition.
Respondent No.1 instituted a suit for possession by way of specific performance of an agreement to sell dated 1.6.1994 against Gurmail Singh, father of the petitioner. In the suit, it was pleaded that father of the petitioner had executed an agreement to sell dated 1.6.1994 and received a sum of Rs.75,000/- as earnest money, in advance. The suit was contested. The trial Court, vide its judgment dated 21.12.1998 (Annexure P1) concluded that a decree of specific performance against the defendant cannot be passed, however, granted an alternative relief in favour of the plaintiff/respondent No.1, which is reproduced below:-
"...16. In view of my findings on above issues, suit of the plaintiff is decreed with costs for the recovery of Rs.80,000/- as claimed in the alternative relief. The plaintiff shall also be entitled to future interest at the rate of 6% per annum from the date of decision till the realization of decretal amount. Decree sheet be prepared accordingly. File be consigned to record room".
The judgment of the trial Court (Annexure P1) was assailed by father of the petitioner by filing an appeal. Respondent No.1 had also filed cross-objections. Vide its judgment dated 25.1.2002 (Annexure P2), the Court of District Judge, Ludhiana, while upholding the judgment of the trial Court (Annexure P1), had dismissed the appeal of Gurmail Singh, father of the present petitioner and cross-objections filed by Civil Revision No.3720 of 2009 3 plaintiff/respondent No.1.
Respondent No.1, being a decree holder, filed an execution petition. An objection petition was filed, wherein it was pleaded that the objector has got only residential house and there is no other house to reside in with the family. Therefore, the same cannot be attached.
The Executing Court relied upon a judgment rendered in Sikandar Singh v. Harjitpal Singh 2005(1) Punjab Law Reporter 591 to hold that since this very house was being sold in pursuance of an agreement to sell, the objections, filed by the petitioner, cannot be sustained. While rejecting the objections, the Executing Court observed as under:-
"...In my considered view in the present case also the JD has knowingly created a lien over the house in dispute at the time when he executed the agreement to sell in favour of the DH. It was well within the knowledge of the JD at that time that it was the only residential house of the JD. Even then if the JD executed the agreement to sell it means that the JD was ready to suffer the hardship by divesting himself of the only residential house. If at this stage, the JD is allowed to wriggle out of his liability by taking the benefit of Section 60(CCC) of the CPC, that would be a mockery of the legal provisions. It would deliver a wrong message that those persons who own only one residential house that they can easily execute an agreement to sell Civil Revision No.3720 of 2009 4 and then to wriggle out of their liability they can take benefit of Section 60(CCC) CPC that they would not be divested of the house being the only residential house. In such like cases, the sufferer is always the DH, who has neither got a decree for specific performance in his favour nor he is able to reap the fruits of alternate decree of recovery of damages. It is to be remembered that since 21.12.98 the DH is struggling to get the fruits of decree, whereas the JD is playing hide and seek with the DH trying to take undue benefit of the legal provisions".
Aggrieved against the same, the present petitioner, being a legal representative of the judgment debtor, filed an appeal. In the grounds of appeal, it was stated that Gurmail Singh, judgment debtor, died in the month of July/August 2004.
The lower Appellate Court has relied upon a judgment rendered in Sikandar Singh's (supra) and Bikram Singh v. Surjit Singh and Others 2005(1) Civil Court Cases 374 to hold as under:-
"...The law laid down in these citations is fully applicable to the facts of the case in hand. When the JD himself had entered into an agreement to sell his residential house, then it does not lie in his mouth to allege that his property cannot be attached. Rather it would create great hardship to the decree holders. Thus, benefit of Section 60(ccc) of CPC is not applicable in such type of cases, when JD himself Civil Revision No.3720 of 2009 5 entered into an agreement to sell his residential house. To avoid his suffering, the learned trial Court has passed a decree for refund of the earnest money. But that does not mean that he is not supposed to make the payment on flimsy ground and to create hurdles in the execution of the decree. If such types of objections are allowed, then decree holder cannot reap the fruits of the decree in his favour. JD is trying to take undue benefit by taking plea that his residential house cannot be attached and even he is not making the payment of the decretal amount to the decree holder. There is no illegality in the well reasoned order passed by the learned trial Court. The order passed by the learned trial Court is based on well established principles of law. There is no ground to interfere in the same".
Besides the reasoning adopted by both the Courts below, the objections filed by the petitioner were also liable to be rejected in view of the law laid down in Shri K.L. Bawa v. M/s Basant Textiles Vol. LXXXIV-1982 Punjab Law Reporter 258, wherein it was held as under:-
"...5. The protection regarding one main residential house is only available to judgment- debtor under clause (ccc) reproduced above.
6. Section 2(10), Civil Procedure Code, defines judgment-debtor and it reads:- Civil Revision No.3720 of 2009 6
"Judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made".
7. K.L. Bawa deceased was the judgment-
debtor against whom the money decree was passed. The protection from attachment of one main residential house under clause (ccc) was available to him in person. His widow Jagdish Rani being not a judgment debtor cannot avail of the protection under clause (ccc). The protection under clause (ccc) which was available to K.L. Bawa, judgment- debtor (now deceased), therefore, came to an end with his death on October 14, 1981. The protection under clause (ccc) being available to the deceased in person would not pass on to his widow as his legal representative. Under these circumstances, there is no escape from the conclusion that the death of the judgment-debtor on October 14, 1981, has rendered the present revision infructuous". This view was further reiterated by this Court in Sheela Rani v. Punjab and Sind Bank Ltd. 1994(1) Punjab Law Reporter 583, wherein it was observed as under:-
"...6. It may also be noticed that clause (c) of sub-section (1) of Section 60 of the Code provides protection from attachment and sale to houses and Civil Revision No.3720 of 2009 7 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. This shows that exemption is available not only to the judgment- debtor but to any person who may be in possession of this property and is an agriculturist. The word 'judgment-debtor' is conspicuously missing in clause
(c) of sub-section (1) of Section 60 whereas clause (ccc) of sub-section (1) of Section 60 belonging to a judgment-debtor. Thus, there is a clear distinction between the two clauses of sub-section (1) of Section 60 of the Code. The former provides protection to an agriculturist in respect of houses and other buildings belonging to and occupied by him whereas the latter clause provides protection to a judgment-debtor only in respect of the main residential house occupied by him. The judgment of the Lahore High Court in Firm Gurparshad Dewat Ram's case (supra) renders no assistance to the petitioners as that was not a case under clause (ccc) of sub section (1) of Section 60 but was a case under clause (c) of sub-section (1) of Section 60 wherein protection in respect of attachment and sale of houses and other buildings is available to an Civil Revision No.3720 of 2009 8 agriculturist".
The view formulated in K.L. Bawa's and Sheela Rani's cases (supra) was also followed in the year 2009 in Rajinder Kaur and Others v. Kashmira Singh and Others (Civil Revision No. 3693 of 2004, decided on 25.11.2009, wherein it was held as under:-
"...Secondly, the protection under Section 60(ccc) of the Code of Civil Procedure, in respect of the sale of sole residential house is available to the Judgment Debtor and not to the legal heirs. Such is the view taken by this Court in K.L. Bawa v. Basant Textiles, 1982 PLR 258 and Sheela v. The Punjab and Sind Bank Ltd., 1994(1) PLR 583".
I am bound to follow the consistent view of this Court, which is a correct exposition of law. In the present case, the objection petition was filed by the legal heirs of the judgment debtor.
Hence, no interference is warranted in the present revision petition and rightly the Executing Court has not entertained the objection petition filed by the legal heirs of judgment debtor. It is hereby dismissed.
(Kanwaljit Singh Ahluwalia) Judge July 22, 2010 "DK"