Dhanna Singh vs Bhagwant Kaur

Satish Kumar Mittal, J.—The judgment debtor has filed this petition under Article 227 of the Constitution of India for setting aside the order

dated 25.1.2007 passed by the Executing Court whereby the objections filed by the petitioner against the attachment of the shop in question on the

ground that the said attachment is against the provisions of Section 60(1)(ccc) of the Code of Civil Procedure, have been dismissed.

In this case, undisputedly, a decree for the recovery of Rs. 1,55,000/ along with interest has been passed against the petitioner. In execution of

the said decree, the shop in question measuring 4660 sq. ft. was attached. The petitioner filed objections to the effect that the said shop is part of

his residential house, therefore, the same cannot be attached in view of the provisions of Section 60(1)(ccc) of the CPC. The Executing Court

dismissed the said application while observing as under :

I have heard the learned counsel for the parties and have gone through the file. The list of property sought to be attached filed by the DH shows

that one shop measuring 4660 sq. ft. situated at Bathinda Road near Hanuman Temple Jaitu has been given as property for attachment and it is not

a house. Vide report dated 27.11.2005 of the bailiff the above property has been attached. So, now the JD cannot claim that any residential

property has been attached in this case. Moreover, vide two sale deeds copies of which have been placed on the file by DH the JD had purchased

two different sites for shop and residential house. So, the objections being superfluous and false are hereby dismissed.

Counsel for the petitioner assailed the order passed by the Executing Court on the ground that the shop in dispute is a portion of the residential

house occupied by the petitioner and, therefore, the same cannot be attached and sold in execution of the money decree in view of the provisions

of Section 60(1)(ccc) of the CPC. In support of his contention, learned counsel for the petitioner relied upon a judgment of the Supreme Court in

Ram Lal and others v. M/s Piara Lal Gobindram and others, 1973 R.C.R.(Rent) 792 : 1973 PLJ 474 and a Full Bench judgment of this Court in

Brij Mohan Lal v. Bakshi Ram and others, AIR 1975 P&H 214. In Ram Lal''s case (supra), it has been held by the Supreme Court that ""if a

portion of the residential house is occupied by the judgmentdebtor himself for the purposes of a shop that portion does not cease to be part of the

residential house. In the circumstances and social conditions of this country, it would be difficult to justify the conclusion that where a part of a

residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential

house. As is wellknown, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an

advocate''s library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease

to be part of his residential house.

In Brij Mohan Lal''s case (supra), it has been held by the Full Bench of this Court and ""thus, where the ground floor of a residential house is

used and occupied by judgmentdebtor (insolvent) himself for purposes of business and only the remaining first and second floors thereof are used

and occupied for purposes of residence, in such a case the whole residential house becomes the main residential house of the insolvent under

Section 28(5) of the Act and as such is exempt from attachment and sale under Section 60(1)(ccc) of the Civil P.C. and is consequently exempt

from vesting, in the Insolvency Court under Section 28(2) of the Act.

After hearing the counsel for the parties, I am of the opinion that in the facts and circumstances of the case, the judgments cited by the counsel

for the petitioner are not applicable in the present case. In this case, the petitioner has purchased two different sites, one for shop and the other for

residential house, though both the sites are adjoining to each other. The petitioner has also annexed the site plan of this property. In the site plan,

the shop is a different portion and the residential house is a different portion, which is situated on the back of the shop have separate access

through a different passage. Merely because the shops are adjoining and may be constructed at one point of time, it cannot be said that the shop in

question is part and parcel of the residential house. The instant case is no a case where one room of a residential building is being used by the

judgment debtor as a shop or occupied by the judgment debtor for himself for the purpose of business. It is a case where a fullfledged shop was

constructed on a property purchased separately by the judgment debtor. The said shop cannot be treated as a part of the residential house, which

has been constructed by the landlord on a separate piece of property purchased by the judgment debtor by a separate sale deed.

In view of the aforesaid facts, I do not find any ground to interfere in the impugned orders.

Hence, the civil revision is dismissed.