Das Mal vs Sanjay Sanjeev and Another

J.V. Gupta, J.—This is decree-holder''s petition against whom objections filed on behalf of the judgment-debtor have been accepted.

The facts of the case are that a decree for Rs. 1,94,335/- with future interest was passed against the judgment-debtor out of which he paid an amount of Rs. 1,94335/- while the future-interest amounting to Rs. 27,339/- is outstanding against him. For this amount, the house of the judgment-debtor was attached He filed objections alleging that the house attached was his residential house and the same was exempt from attachment under proviso (ccc) of Section 60(1), Code of Civil Procedure. In the reply filed on behalf of the decree-holder, it was pleaded that the said provision of law stood abrogated in view of Section 97 of the CPC (Amendment) Act, 1976. The executing court relying on K.L. Bawa v. Basant Textile 1982 P.L.R. 258, came to the conclusion that the residential house of the judgment-debtor was exempt from attachment and consequently, it dismissed the execution application. Dissatisfied with the same, the decree-holder has filed this revision petition.

The short question to be decided in this petition is as to whether Clause (ccc) added to Section 60, CPC prior to the amending Act, of 1976 is inconsistent with the provisions of the principal Act as amended, i.e., Section 60, or not. Under proviso (c) to Section 60(1), houses and other buildings belonging to an agriculturist a labourer or a domestic servant and occupied by them, are exempt from attachment and in addition, by virtue of Clause (ccc) added in. Punjab and Haryana, this exemption is available in respect of one residential house to every judgment-debtor. The said Clause (ccc) reads as under:

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.

The contention raised on behalf of the decree-holder is that whereas u/s 60(1)(c), only the houses belonging to an agriculturist or a labourer or a domestic servant are exempt raider Clause (ccc) added by Punjab and Haryana, every judgment-debtor is entitled to this exemption. There being inconsistency between them, the counsel states that Clause (ccc) stands repealed in view of Section 97 of the CPC (Amendment) Act, 1976. In support of this contention, he referred to S. Rau''s Indian Administrative Service Study Circle Vs. Sushila Nanda and Others, . Of course, the said judgment does support the contention raised on behalf of the decree-holder but the same was over-ruled subsequently by a Division Bench of the Delhi High Court itself,--vide S.C. Jain Vs. Union of India, and therefore, it was no more a good law. In para 10 thereof it was observed by the Division Bench:

The extension in Delhi, it is claimed, is by an Act of Parliament and thus is outside the ambit of Section 97(1) of 1976 Act. So far as Punjab is concerned, there is no dispute that the insertion of Clause (ccc) in proviso is by virtue of a legislation by the State Legislature. If the view of Luthra, J. and Sultan Singh, J. that the provisions of the Code as amended by 1976 are inconsistent with Clause (ccc) of which we express no opinion is correct, the result undoubtedly would be that Clause (ccc) may no longer be available so far as the State of Punjab is concerned. But the same consequence does not follow in the Union Territory of Delhi.

Thus, as regards the State of Punjab, the learned Judges did not express any opinion. On the other hand, the judgment of this Court in K.L. Bawa''s case (supra) directly deals with the matter wherein it has been held that the protection from attachment of the main residential house under Clause (ccc) was available to the judgment-debtor. The decree itself in that case was passed on 12th March, 1977 and the objections to the execution of the decree were dismissed on 29th September, 1980, i.e., after the enforcement of the amending Act of 1976.

Apart from the above, I do not find any inconsistency in the two provisions of Clause (c) and Clause (ccc) of Section 60. By virtue of Clause (ccc), only the scope of Clause (c) has been extended. As observed earlier, Clause (c) exempts all the houses belonging to an agriculturist, a labourer or a domestic servant, whereas Clause (ccc) exempts only one main residential house belonging to all categories of judgment-debtors, other than agriculturists, etc. The exception made in respect of agriculturists, etc., in Clause (ccc) is only a consequence of Clause (c) whereunder their houses (i.e., even more than one) already stand exempted. Therefore, there can be no inconsistency between the two provisions contained in Clause (e) and (ccc) u/s 60(1) of the Code of Civil Procedure. In this view of the matter, the petition fails and is dismissed, with no order as to costs.