Santu and Another vs Sohan Lal and Others

Teja Singh, C.J.—This revision petition arises out of execution proceedings. The facts briefly stated are as follows:

On 29-9-1996 one Nathu Lal obtained a money decree for Rs. 1,000 and costs against the four sons of Mangal deceased, realisable out of the assets of Mangal in the hands of his sons and also against Biru, one of the four sons, personally. On 9-11-1997 Nathu Lal sued cut the execution of the decree and had a house attached on 2-3-1998. On 6-12-2000 Santu and Bantu, two of Mangal''s sons, put in objections to the attachment and sale of the house. They alleged that they being agriculturists and the house being used by them for residential purposes the same could not be attached and sold in execution of money decree against their father. They further alleged that the house being their only residential house it was exempt from attachment and sale. The following two issues were framed by the execution Court:

Whether Santu judgment-debtor was an agriculturist? and

Whether the attached property was out of the assets of Mangal deceased?

The reason why no mention of Bantu objector was made in the issue is not clear from the record. It may be that because he was blind and minor and the objections were raised by Bantu as his guardian his name was left out inadvertently. This, however, is not material because both sides admitted that the objections were on behalf of Bantu also and if they had succeeded the benefit of them should have gone to him as well as to Santu.

Both the issues were found against the objectors and their objection petition was dismissed. On appeal the District Judge set aside the order of the executing Court and remanded the case for re-decision after adding Anr. issue, viz., whether the judgment debtors were governed by customary personal law. After the remand the case came up before Anr. Sub-Judge who, instead of deciding the case as directed by the District Judge, submitted a report to the District Judge that the objectors had not been able to prove that custom applied to them. The District Judge sent back the case to executing Court pointing out that according to the order of remand, it was its duty to decide the case de novo and no question of submitting a report arose. By that time the previous Sub-Judge had also been transferred and his place was taken by S. Mohindar Singh Joshi. The latter found all the issues against the objectors and disallowed their objections. The objectors again went up in appeal to the District Judge but this time they failed.

The petition is directed against the appellate order of the District Judge. It has been referred to the Full Bench on the ground that it involves important and difficult questions. I may, however, point out that it being only a petition in revision the score of it is limited. The District Judge has held that the objectors were not able to prove that they were agriculturists, and accordingly they could not avail of the exemption mentioned in Clause (c) of Section 60, Code of Civil Procedure. This is a finding based on evidence and no question of jurisdiction being involved it cannot be disturbed in revision. The Petitioner''s counsel argued that the onus of issue No. 1 was wrongly placed upon his clients and this had materially prejudiced them. There is nothing on record to show that at the time the Court framed the issues and placed the onus of the first issue upon the objectors, any objection was taken on their behalf. I am, therefore of opinion that it is not open to them to raise this point at this stage. Moreover, since both parties produced all the evidence that was available to them and the entire evidence was taken into consideration by the District Judge the question of onus becomes immaterial and even if we be inclined to think that the onus was wrongly placed, the finding of the District Judge cannot be set aside merely for this reason. Apart from this I am not convinced that there was any error on the part of the trial Sub-Judge in framing issue No. 1, in the form in which he did or in requiring the objectors to prove that they were agriculturists. It was conceded by counsel for both sides that at the time of the decree as well as at the time the house in dispute was attached, exemption from attachment of the house on the ground that they were agriculturists could only be claimed under Clause (c) of Section 60 which lays down that houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him are not liable to attachment and sale in execution of a decree. The Petitioner''s counsel argued that since the section was later on amended by the Patiala Relief of Indebtedness Act (v [5] of 1999) and the scope of exemption from attachment of a house belonging to and occupied by an agriculturist was made wider, and the act had come into force before the objections were filed, the objectors were entitled to take advantage of the amendment. That the Act was in force at the time the Petitioners put in their objections cannot be denied, because it came into force on 1-4-2000 and the objection petition, as mentioned above, was instituted on 6-12-2000. Section 34 of the Act laid down that Section 60, CPC would stand amended as below:

(i) In Clause (c), for the words ''occupied by him,'' the following words shall be deemed to be substituted, namely:

not proved by the decree-holder to have been let out on rent or lent to persons other than his father, mother, wife, sort, daughter, daughter-in-law, brother, sister or other dependents or left vacant for a period of a year or more''; (ii) After Clause (c), the following clauses shall be deemed to be inserted, namely:

(cc) Milch animals, whether in milk or in calf, kids, animals used for the purposes of transport or draught carts, and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;

(ccc) one main residential house and other building attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to judgment-debtor other than an agriculturist and occupied by him;

After Sub-section (2) the following sub-sections shall be deemed to be inserted, namely:

(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void;

(4) For the purposes of this section the word ''agriculturist'' shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land as defined in the Patiala Alienation of Land Act, 1972,

(5) Every member of a tribe notified an agricultural under the Patiala Alienation of Land Act, 1972, and every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved;

(6) 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.

As regards the allocation of onus the Petitioners'' counsel mainly relied upon Sub-sections (4) and (6) added to Section 60, by the amending section of the Patiala Relief of Indebtedness Act. He argued that the amendment related only to the law of procedure and accordingly it applied even to the pending execution applications and objection petitions. He also drew our attention to the words of the proviso to Section 60 which enumerate the different kinds of properties that are exempt from attachment and sale and argued that since the relevant words of the proviso are "attachment or sale", even if it be held that it was not open to the objectors to question the attachment on the ground that it had been effected before the amending Act came into force, there was nothing to prevent them from objecting to the sale which had yet to take place. His argument precisely was that in view of the word "or" used in the proviso an objection to a sale in execution of a decree was maintainable even if the objection to attachment did not lie. On the other hand, it was contended by the Respondents'' counsel that the decree-holders'' right to attach the property of his judgment-debtor and to have it sold in execution of his decree accrued on the day he obtained the decree and since Section 34, Patiala Relief of Indebtedness Act, was not given any retrospective effect, it could not take away that right of the decree-holder and could not affect the present proceedings. In the alternative he argued that as soon as the house in question was attached a right accrued to the decree-holder to have it brought to sale and that right could not be taken away by a law which was enacted later, unless it was laid down therein in so many words that it applied to pending proceedings. He denied that the amendments introduced into Section 60, CPC by Section 34, Patiala Relief of Indebtedness Act, could be regarded as affecting the procedure and he maintained that they affected substantive rights of the parties and as such they could only be applied to proceedings that came into existence after the Act came into force.

Reliance was placed by the Petitioners'' counsel upon two decisions of the Judicial Committee of the Patiala and East Punjab States Union and a single Bench decision of the Lahore High Court, Telu Ram v. Firm Jethu Mal Har Parshad AIR 1937 Lah. 560 : 170 I.C. 338. In the last named case certain standing trees belonging to a judgment-debtor were attached in execution of a money decree before the Punjab Debtors'' Protection Act came into force but the order for the sale of the trees was made after the Act had come into force. It was held that the attachment did not create a charge or a lien upon the attached property nor did it confer any title upon the attaching creditor and since the Act exempted the trees from attachment and sale the order directing the sale of the tress could not be maintained. This decision no doubt helps the Petitioners but it was later on overruled by a Full Bench of the same Court in People''s Bank of Northern India Ltd. v. Waheed Bakash AIR 1943 Lah. 170 : ILR (1943) Lah. 646 F.B.

The first decision of the Judicial Committee is Kasturi Mal v. Mahi Ram Civ. Appl. No. 66 of 2004. In that case a money decree had been passed against the judgment-debtor on 23-5-2000 and in execution of that decree a house of his was attached on 29.3-2000. The judgment-debtor objected to the attachment on the ground that he was residing in the house and since it was the only house available to him for his residence it could not be attached and sold in execution of the decree. The objection was dismissed by the executing Court on the ground that the objector had not been able to prove that he was residing in the house. The objector''s appeal to the District Judge was also dismissed. On revision the High Court set aside the orders of the Courts below and accepted the objection petition holding that the house was exempt from attachment and sale, under the provisions of Section 60, Sub-section (1) Clause (c) as amended by Section 34, Patiala Relief of Indebtedness Act, being the house of an agriculturist and not having been let out on rent, etc When the matter went up before the Judicial Committee on further appeal it framed the following additional issue and called for a report thereon; "Does the judgment-debtor both earn his livelihood mainly by agriculture and is a tenant of agricultural land?" The report received from the High Court was to the effect that though the judgment-debtor had not been able to prove that he was earning his livelihood mainly by agriculture or he was a tenant of agricultural land at the time of the attachment, he had taken to agriculture since Kharif 2002 and further that he had given up other avocations in favour of agriculture. In view of this report of the High Court the Judicial Committee held that the decree-holder''s appeal must stand dismissed. This is what the learned Judges observed in the concluding part of their judgment:

In view of this finding as the bar concerning an agriculturist''s house is both with regard to attachment and sale, the judgment-debtor has fulfilled that condition and he would be an agriculturist if the property were not put to sale.

The second case Hukam Chand v. Nauhar Chand Civil App. No. 4 of 2004 arose out of insolvency proceeding. One Nauhar Chand was adjudicated insolvent and a Receiver was appointed of his property. After Nauhar Chand''s death the Official Receiver wanted to put one of the houses left by him to sale. Nauhar Chand''s son objected to the sale on the ground that since be was an agriculturist and the house was used for residential purposes it could not be sold. Reliance was placed on his behalf on Clause (ccc) of Sub-section (1) of Section 60 as added to it by Section 34, Patiala Relief of Indebtedness Act. The Insolvency Court rejected the objection but the District Judge set aside the order of the Insolvency Court and allowed the objection. An appeal was preferred to the High Court against the order of the District Judge. The High Court held that the appeal was not competent but treated it as a petition for revision and rejected it because it thought that there did not exist any grounds for interference. The appeal from the order of the High Court was heard by the President (Rai Bahadur S. Garish Parsbad Mathur) because the member (Sardar Bahadur S. Raja Singh) who was then the Chief Justice of the High Court had decided the case in that Court. The learned President agreed with the High Court that Clause (ccc) added to Section 60 by the amending Act applied to the case and dismissed the appeal.

Before I set out to determine whether these decisions are applicable to the facts of the present casa and if so what effect they have upon them, I consider it necessary to examine the contention of the Respondents'' counsel that we are not bound to follow the decisions of the Judicial Committee. Now, it is common knowledge that this Court as well as the Judicial Committee of the Union came into existence by virtue of the Patiala and East Punjab States Union Judicature Ordinance (X [10] of 2005), and Section 5 of the Ordinance lays down that the law declared by the Judicial Committee of the Union shall be binding on all Courts within the territories of the Union,. The Respondents'' counsel argued that in view of the fact that the Judicial Committee has now been abolished and the Judicature Ordinance, though not repealed in so many words, has been superseded in important respects by the provisions of the Constitution of India which is in force in the whole country, including the territories of the Union, the decisions of the Judicial Committee have no longer any binding force upon the High Court. He particularly referred us to Articles 216, 217, 219, 221 and 222 of the Constitution of India which vary the law laid down in the Judicature Ordinance in so far as it relates to the High Court of the Union and which according to the counsel supersede the corresponding provisions of the Ordinance. He also referred us to Article 141 of the Constitution which enacts that the law declared by the Supreme Court shall be binding on all Courts within the territories of India and maintained that this by implication excluded the authority of all the other Courts that exist or existed in India at any time.

It is true that by virtue of the proclamation issued by His Highness the Rajpramukh of the Patiala and East Punjab States Union on 24-11-1949, the Constitution of India is in force in the territories of the Union in the same manner as it is in the rest of India but this does not mean that all the laws that were in force in the Union at the time of the commencement of the Constitution of India stood repealed or abrogated thereby. Two important things must be taken into consideration in this connection. The first is that it is laid down in the concluding para, of the proclamation of His Highness the Rajpramukh mentioned above that only those provisions of the laws prevalent in the Union would be superseded and abrogated by the coming into effect of the Constitution which were of constitutional nature and were inconsistent with the provisions of the Constitution. The words of the para are:

That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in foroe in the State.

The second is that Article 225 of the Constitution clearly saves "law etc. in force in the Union and particularly those which affect the jurisdiction of the High Courts." This is how the Article reads:

Subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject, immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

Taking the words of this Article with the concluding part of His Highness the Rajpramukh''s proclamation, I am of the opinion that Section 5 of the Judicature Ordinance could be taken to have been abrogated by the provisions of the Constitution only if it is inconsistent with them. Now the only Article which by implication affects the authority of the Judicial Committee is Article 241, but all that it lays down is that the law laid down by the Supreme Court shall be binding upon all the Courts. As I read this Article and place side by side with it Section 5 of the Judicature Ordinance, the opinion that I form is that one does not exclude the other altogether and there can be no conflict between them unless the law laid down by the Judicial Committee is different from that laid down by the Supreme Court. What I mean to say is that if in a certain matter the Judicial Committee has laid down the law but that matter has not gone before the Supreme Court and consequently no occasion has arisen for that Court to lay down the law on the same point, Section 5 of the Judicature Ordinance must be given effect to and the law laid down by the Judicial Committee must be followed by all the Courts in the Union, including the High Court. It is only when the law laid down by the Supreme Court on a certain point is different from that laid down by the Judicial Committee that Article 241 will come into operation and the former law will be preferred to the latter. As regards the construction of Section 34, Patiala Relief of Indebtedness Act, which is the subject matter of consideration in the present case and the question whether or not it has retrospective effect so as to apply to pending proceedings both counsel are agreed that no decision of the Supreme Court is available thereon. Accordingly if it is shown that the Judicial Committee has laid down any law thereon, we are bound to follow it regardless of what our own opinion on the point might be.

As regards the first decision of the Judicial Committee no question of the retrospective affect of the Patiala Relief of Indebtedness Act arose therein, for the simple reason that the decree as well as the attachment which was the subject-matter of dispute between the parties, took place after the Act had come into force and without doubt the validity of the attachment and sale had to be determined according to Section 60, CPC as amended by the Patiala Relief of Indebtedness Act. It was argued before us that as in that case, in this case also the objectors had proved that even though they were not agriculturists at the time of the attachment, they had come to occupy that status later on and so the sale of the house was exempt. As I have pointed out above there is no analogy between this case and the case decided by the Judicial Committee for the reason that the amending Act had come into force before any attachment was effected. In addition I do not accept the position that the objectors had proved that they were agriculturists either at the time of the attachment or subsequently. The findings of the trial Sub-Judge as well as the District Judge on this point are against them. I am prepared to concede that the District Judge while deciding this point mostly confined himself to the evidence that related to the time of attachment and it may reasonably be urged that he did not apply his mind to the question whether any change had occurred in the objector''s status after the attachment but the reason for this appears to be that the point was not taken before him on behalf of the Petitioners and this being the case the Petitioners cannot be allowed to raise it in a revision petition before the High Court. I may also mention that I have gone through the evidence produced by the Petitioners and I do not think that it is possible to hold on the strength thereof that the Petitioners though they were not agriculturists at the time of the attachment have become be now. The only question that calls for consideration is whether they can take any advantage of Sub-section (4) added to Section 60, Code of Civil Procedure, by the Patiala Relief of Indebtedness Act. This they could be allowed to do only if the Act applied to pending proceedings and the decision of the Judicial Committee does not help the Petitioners on this point.

As regards the second decision, the facts of it are clearly distinguishable from those of the present case. As mentioned above the property which was the subject-matter of the dispute had been taken hold of by the Receiver and there was no attachment and consequently it could not be urged that the attaching creditor had acquired a vested right and the same could not be taken away by the provisions of the amending Act. A perusal of the judgment of the learned President no doubt goes to show that while arguing the case before the Committee the Appellant''s counsel assumed that there had been an attachment and his contention was that because the attachment had vested a valuable right in the decree-holder the amending Act could not take it away and further that this argument was repelled by the learned President. But the assumption was unwarranted and the precise question argued before the Committee by the Appellant''s counsel did not arise therein. This means, if I may say so with due deference, that the observations made by the learned President in his judgment that mere attachment of property confers no right on the decree-holder were of the nature of an obiter dictum and though entitled to great respect, strictly speaking, they do not amount to the "law laid down." I am supported in this view by a Full Bench decision of the Allahabad High Court in Anand Prakash and Another Vs. Narain Das-Dori Lal and Another , and a Bench decision of the Bombay High Court in Lumbhardhar Zutshi v. Emperor AIR 1948 Bom. 79 : 49 Cr.L.J. 4. Accordingly, I bold that this decision also cannot help the Petitioners.

The ruling which is directly in point is a Full Bench decision of the Lahore High Court, Peoples Bank of Northern India Ltd. v. Waheed Bux AIR 1943 Lah. 170 : ILR (1943) Lah. 646 F.B. The enactment that came into consideration in that case was the Punjab Relief of Indebtedness Act (XII [12] of 1940), Section 35 of which is almost in the same terms as Section 34, Patiala Relief of Indebtedness Act. It was urged before the Full Bench that the section was retrospective and applied to all execution petitions pending at the time the Act came into force and all the arguments that were addressed to us on behalf of the Petitioners were advanced before the Full Bench. The learned Judges of the Full Bench (Harries C.J., Din Mohammad and Abdur Rahman JJ.) repelled the contention and held that since there was nothing in the wording of the section which compelled a Court to hold that it was intended to have retrospective effect, the section was not retrospective and did not apply to pending execution proceedings where attachment had already been effected. The previous decisions of the High Court, including Telu Ram''s case AIR 1937 Lah. 560 : 170 I.C. 338, which took a contrary view were overruled. The same view was taken by a Division Bench of that Court in Mt. Revti v. Chiranji Lal AIR 1944 Lah. 29 : ILR (1943) Lah. 666. Without repeating the arguments that the learned Judges gave in support of their respective dicta I wish to observe, with all respect, that they appear to me to lay sound law and we must follow them.

As a last resort it was urged before us by the Petitioners'' counsel that oven if they were not proved to be agriculturists the house being their only residential house it was exempt from sale in execution of their father''s decree by virtue of Clause (ccc) added to Section 60, Code of Civil Procedure, by the amending Act. The learned Counsel admitted that the Petitioners could take advantage of the said clause only if the amending Act applied to the present proceedings and not otherwise. Since I have already held that the Act had no retrospective effect and the present proceedings are not governed thereby this objection must also fail.

In the result I would dismiss the revision petition, but taking into consideration the difficult nature of the questions involved and the peculiar circumstances of the case, I would leave the parties to bear their own costs throughout.

Passey J.

I entirely agree.

Chopra J.

I entirely agree.