Punjab-Haryana High Court

Dalbir Singh vs Sanjay Kumar on 1 November, 2022

                            103

                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                                                                  CR-3216-2021 (O&M)
                                                                  Reserved on : 21.10.2022
                                                                  Date of Decision: 01.11.2022


                            Dalbir Singh                                                      ....Petitioner

                                                             VERSUS

                            Sanjay Kumar                                                   ....Respondent



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                            Present :   Mr. Ashok Arora, Advocate for the petitioner.



                            ALKA SARIN, J.

The present civil revision petition under Article 227 of the

Constitution of India has been filed for setting aside the order dated

02.02.2019 (Annexure P-8) and also the order dated 11.10.2021 (Annexure

P-11) passed by the Trial Court whereby the application for recall of the

order dated 02.02.2019 has been dismissed.

The brief facts relevant to the present lis are that an award dated

02.11.2016 was passed by the Lok Adalat in a petition under Section 138 of

the Negotiable Instruments Act, 1881. The JD-respondent herein agreed to

repay the loan amount in two installments of Rs.10,00,000/- each failing

which he was liable for conviction as per the statements of the parties

recorded on 02.11.2016. Thereafter, the award was passed. The

JD-respondent did not pay the amount on time, hence, an execution petition YOGESH SHARMA 2022.11.01 11:39 I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR-3216-2021 (O&M)

was filed by the DH-petitioner. In the execution petition, vide order dated

14.05.2018, on an application filed by the DH-petitioner, the salary of the

JD-respondent was attached till further orders. Prior to that, the conditional

warrants of arrest of the JD-respondent were also issued. The JD-respondent

moved an application for release of the salary and attachment of the

property. Vide impugned order dated 02.02.2019 the Executing Court, in

view of the provisions of Section 60(1)(i) of the Code of Civil Procedure,

1908 (CPC), recalled the order dated 14.05.2018 and the employer of the

JD-respondent was directed to release the attached salary only to the extent

of 2/3rd attached salary and the rest 1/3rd attached salary was to be deposited

in the account of the DH-petitioner. The property of the JD-respondent was

attached with immediate effect and the report of the Tehsildar was called.

Further, vide order dated 02.02.2019 the conditional warrants of arrest were

recalled. All the applications were disposed off. Subsequently, an

application was filed by the DH-petitioner for recalling the order dated

02.02.2019. A reply was filed to the said application. Vide the impugned

order dated 11.10.2021 (Annexure P-11) the application for recalling the

order dated 02.02.2019 was dismissed. The Executing Court held that the

salary of the JD-respondent had been attached and remittance therefrom had

already been made for a period of 24 months and further salary could not be

attached in execution of one and the same decree. The plea raised by the

DH-petitioner that the property attached would not serve the purpose for

satisfying the award, was rejected on the ground that the value of the

property was yet to be ascertained and the JD-respondent was directed to

furnish an affidavit stating all the particulars of his moveable and

immoveable properties in accordance with Order 21 Rule 41(1) and (2) YOGESH SHARMA 2022.11.01 11:39 I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR-3216-2021 (O&M)

CPC. The prayer of the DH-petitioner for recalling the order of conditional

arrest warrants was also declined.

Learned counsel for the DH-petitioner has contended that the

order dated 02.02.2019 ought to have been recalled inasmuch as the amount

as promised by the JD-respondent had not been paid. Learned counsel for

the DH-petitioner has relied upon the judgment of Hon'ble Supreme Court

in the case of K.N. Govindan Kutty Menon V s. C.D. Shaji [2012 (2) SCC

51] and the judgments of this Court in the cases of Mahender Kumar Vs.

Mangal Singh [2013 (4) RCR (Civil) 342] and Ajit Inder Singh Vs.

Kuldip Singh [1994(1) Civil Court Cases 680].

Heard.

Learned counsel for the DH-petitioner is not in a position to

deny the fact that the salary of the JD-respondent already stood attached for

a period of 24 months and 1/3rd amount as deducted from the salary was paid

to the DH-petitioner. Learned counsel for the DH-petitioner is also not in a

position to controvert that some property of the JD-respondent already

stands attached qua which the proceedings are pending. The JD-respondent

vide the impugned order was directed to file an affidavit stating all the

particulars of his moveable as well as immoveable properties.

Section 60(1)(i) CPC reads as under :

"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,

YOGESH SHARMA 2022.11.01 11:39 bills of exchange, hundis, promissory notes, Government I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR-3216-2021 (O&M)

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 particulars shall not be

liable to such attachment or sale, namely :

xxx

(i) salary to the extent of the first one thousand rupees

and two-thirds of the remainder in execution of any

decree other than a decree for maintenance.

Provided that where any part of such portion of the

salary as is liable to attachment has been under

attachment, whether continuously or intermittently, for a

total period of twenty-four months, such portion shall be

exempt from attachment until the expiry of a further

period of twelve months, and, where such attachment

has been made in execution of one and the same decree,

shall, after the attachment has continued for a total

period of twenty-four months, be finally exempt from

attachment in execution of that decree."

The salary of the JD-respondent cannot be attached for a period

YOGESH SHARMA of more than 24 months where such attachment is made in execution of one 2022.11.01 11:39 I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR-3216-2021 (O&M)

and the same decree. The amount of 1/3rd of the salary of the JD-respondent

for a period of 24 months already stands deposited in the account of the DH-

petitioner. Further, a property measuring 3 kanals 11 marlas belonging to the

JD-respondent has already been attached and the JD-respondent has been

asked to furnish an affidavit along with all the particulars of his moveable as

well as immoveable properties. The argument of learned counsel for the DH-

petitioner that the salary should be continued to be attached cannot be

accepted in view of the clear provisions of Section 60(1)(i) of CPC. Further

the argument of learned counsel that the JD-respondent ought to be arrested

for non-compliance of the order passed by the Permanent Lok Adalat cannot

also be accepted in view of the fact that arrest would be a measure of last

resort and in the present case, admittedly, some property of the JD-

respondent already stands attached and the Executing Court has directed the

JD-respondent to file an affidavit stating all the particulars regarding his

moveable and immoveable properties.

The judgment relied upon by learned counsel in the case of

Mahender Kumar (supra) would not come to the aid of the DH-petitioner

inasmuch as in the said case there was a specific condition in the

compromise that till the amount was not paid the defendant therein would

not sell, mortgage the house in question and a charge would remain created

on the same. In the present case, there is no such condition in the

compromise.

The judgment relied upon by learned counsel in the case of Ajit

Inder Singh (supra) would also not be of any help inasmuch as the same is

on a totally different point that in case the compromise is not acted upon, the

civil suit should be restored and the Court should proceed with the suit from YOGESH SHARMA 2022.11.01 11:39 I attest to the accuracy and integrity of this order/judgment.

Chandigarh CR-3216-2021 (O&M)

the stage as it was withdrawn. The present proceedings have arisen out of

the execution proceedings.

The judgment relied upon by learned counsel in the case of

K.N. Govindan Kutty Menon (supra) also does not further the case of the

DH-petitioner inasmuch as the same lays down that an award passed by the

Lok Adalat would be deemed to be a decree of the Civil Court executable by

the Civil Court. There can be no quarrel with the said proposition of law. In

the present case, the property of the JD-respondent already stands attached

and the JD-respondent has been directed to file an affidavit stating all the

particulars regarding his moveable and immoveable properties. Hence, the

impugned order cannot be faulted.