Matu Ram And Sons And Anr. vs Elgin Mills Co., Ltd. And Ors.
1973 Latest Caselaw 184 Del

JUDGMENT

S.N. Shanker, J.

1. In this appeal the judgment-debtors have assailed the order Passed by the learned Single Judge during execution of the decree obtained by the respondents against them.

2. On April 30, 1963, the respondents obtained a decree for Rs. 75,000/- the odd against the appellants from the Civil Court at Kanpur. On the basis of a transfer certificate, on August 18, 1964, the decree-holders filed an application for execution of this decree in the court of the Subordinate Judge First Class, Delhi. On May 5, 1965, the executing court attached houses of the judgment-debtors, bearing Nos. 4763 and 4764 situated at Deputy Gani, Sadar Bazar, Delhi in execution of the decree. On October 14. 1966 the appellant, Matu Ram, stated before the executing court that he had properties other than the attached houses which were specified in the statement filed in court and marked Exhibit J-1 and the decree older may Proceed against those properties first. The respondents agreed to his suggestion without prejudice to their right to proceed against the attached houses if the decrial amount for any reason was not realized from those other properties. It then transpired that in the other properties the appellants had only an insignificant share and the decretal amount could not be realized from them. The respondents, therefore, applied to the court for sale of the two attached houses. The appellant filed objections to this vide I. A. Nos. 1580 of 1971 and 629 of 1972. They were, however dismissed by order of the Executing Court dated October 27, 1972. The respondents then applied again to the court to proceed with the sale of the two houses. Notice of this application was issued to the appellants. They again filed objections on January 29, 1973 and contended that the transfer certificate obtained by the respondents from Kanpur courts should be considered by the respondents to have exhausted itself due to passage of time and that the attachment of the two houses which was effected as far back as May 5, 1965, should be deemed to have been released as nothing had been done in respect of these properties over the past so many years. It was also contended that there was no subsist attachment in respect of these houses and had hey could not, therefore be put to sale. The learned Single Judge found that all these objections were without substance and dismissed them by the impugned order and directed the decree-holder to proceed further with the execution and to file the application under Order 21, Rule 66 Civil Procedure Code.

3. Shri R. M. Lal, appearing for appellants, has not made any serious attempt to canvass the correctness of the findings in respect of the first two objections and very rightly because, as found by the learned Single Judge the execution application in pursuance of which the houses were attached was still pending and was at no time dismissed. This execution was started on the basis of a valid transfer certificate and It. is not the case of the appellants that the houses in question were not attached during this execution it was because of the statement of the appellant. Matu Ram himself that the respondents agreed to proceed first against the other properties mentioned in Annexure J-1 and the execution proceedings, therefore, took time but the attached houses were at no stage released. The objections, therefore, that the transfer certificate should be considered to have exhausted itself and the attached houses should be deemed to have been released were wholly without merit.

4. In support of the third objection. Shri R. M. Lal urged that the attached houses could not be sold by reason of the Punjab Relief of Indebtedness Act and the Proviso to Section 60 of the Code of Civil Procedure providing for exemption from attachment and sale of a residential house belonging to the judgment Confronted with the position that no averment that the attached houses were the residential houses of the appellants was made in the objection petition filed in court and, therefore, the relief on this ground was not available to the appellants, the learned Counsel referred to the Punjab Amendment of clause (c) of Section 60 of the Code of Civil Procedure which is in force in Delhi and urged that it was the duty of the Executing Court, even without an objection being raised, to satisfy itself that the property sought to be attached was not the residential house of the judgment debtor.

5. Proviso to Section 60 of the Code of Civil Procedure enumerates Particulars of the properties which in law would not be liable to attachment and sale. Clause (c) of the proviso mentions houses and other buildings belonging to an agriculturist and occupied by him. The Punjab Amendment inter alia provides that after clause (c) in the proviso to Section 60, clauses (cc) and (ccc) shall be deemed to be inserted. It further added sub-section (3). (4), (5) and (6) alter subsection (2) of Section 60. It was clause (ccc) and sub-section (6) on which the learned counsel for the appellants relies. They read:

"(ccc) one main residential house and other buildings attached to it (which 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."

Sub-section (6) of Section 60: "No order for attachment shall be made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale."

Sub-clause (ccc) exempts one main residential house such as is described from attachment and sale in execution of a decree. Sub-section (6) contains a prohibition against an order of attachment being made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale. The contention is that in the case of a residential house, the Court has to be satisfied precedent to making an order for attachment that the property sought to be attached is not exempt from attachment or sale and in the present case the Executing Court had not expressed such satisfaction before making the order of attachment even exparte.

6. It is further contended that there was not even an averment in the application for execution that the houses in question were not exempt from attachment or sale. In our opinion, this is not a Proper construction of sub-section (6) of Section 60 of the Code of Civil Procedure. To invoke this Provision the judgment debtor has to plead and prove that the house and the other buildings attached constitute his residential house and that the same are in his occupation. These pleas of fact have to be specifically raised before the court. The Executing Court is not bound to start with the Presumption that every property sought to be attached is exempt under Section 60. The appellants in this case we find at no stage raised these pleas of fact. They are, therefore, not entitled to urge these facts at a later stage of 'the objection proceedings to support the plea that there is no valid and subsisting attachment. If a property covered by the proviso to Section 60 and exempt from attachment is attached, it is open to the judgment debtor to file objection and to plead and Prove that the attached property is exempt from attachment and for this purpose the burden lies on him and not on the court executing the decree. The contention, therefore, that the court should have satisfied itself that the attached houses were not the residential houses of the judgment debtor in the absence of any objection to that effect, has no merits.

7. It would further be seen that in this case after the two houses had been attached by the respondents the appellants Matu Ram himself stated that the execution may first be proceeded with against the other properties mentioned in Annexure J-1. The respondents accepted this suggestion and acted on this statement, We are in full agreement with the learned Single Judge that in these circumstances the objection that the attached houses were residential houses of the judgment debtor and therefore could not be sold is not at all open to the appellants.

8. There is another aspect of the matter. The appellants raised objection to execution by means of I. As. 1580 of 1971 and 629 of 1972, which were dismissed on October 27, 1972 as we have already said. In these objections it 77 as not Pleaded that the attached houses were residential houses and could not be proceeded against in execution. The plea now sought to be raised for this reason, is clearly barred by principles of constructive res judicata which. it was not disputed applied fully to execution pro- (See Mohanlal Goenka v. Be- Krishna ).

9. The learned Single Judge in our view was, therefore, correct in dismissing the objections of the appellants on all these grounds.

10. Shri R. M. Lal lastly contended that the executing court did not frame issues and the impugned order for this reason was vitiated. The objection is frivolous. At no stage, it appears from the order of the learned Single Judge, the appellants prayed for the framing of any issues or for permission to lead any evidence. The questions agitated were mainly questions of law that could be decided with reference to the file that was before the court. We find that no prejudice has been caused to the appellants in this case by the non- framing of the issues and reject the contention unhesitatingly.

11. In the result, this appeal is dismissed with costs, Counsel's fee Rs. 100/-.

12. Appeal dismissed.