Saroj Bala vs United Commercial Bank

Laxmi Narain Mittal, J.—Judgment Debtors (JDs) No. 1 and 9-Saroj Bala and Urmila Devi have filed this revision petition under Article 227 of the Constitution of India, challenging the order dated 13.05.2008 (Annexures P-5) passed by the Executing Court thereby dismissing objections/applications (Annexures P-1 and P-2) filed by the petitioners for release of their residential houses from attachment. Decree for recovery of money has been passed in favour of respondent No. 1-Decree Holder (DH) Bank against petitioners and proforma respondents No. 2 to 11 (JDs). DH-Bank has filed execution petition for execution of the decree wherein houses of JDs have been attached. In their applications (Annexures P-1 and P-2), JDs alleged that houses in question which have been attached are their only residential houses and, therefore, the same are exempted from attachment.

DH by filing replies (Annexures P-3 and P-4) controverted the objections/applications filed by the JDs.

Learned Executing Court vide impugned order Annexure P-5 has dismissed the applications (Annexures P-1 and P-2) filed by the petitioners who have, therefore, filed this revision petition to challenge the said order:

I have heard learned counsel for the parties and perused the case file.

Counsel for respondent No. 1-DH relying on two judgments of this Court i.e. K.L. Bawa Vs. Basant Textiles, and Sheela Rani Vs. The Punjab and Sind Bank Ltd. and Others, , contended that the JDs being legal heirs of principal borrower and guarantor since deceased are not entitled to the benefit of Proviso (ccc) to Section 60(1) of the Code of Civil Procedure(CPC) and, therefore, applications filed by JDs have been rightly dismissed by the Executing Court.

On the other hand, counsel for the petitioners contended that the money decree was passed against petitioners and respondents No. 2 to 11 and, therefore, they themselves are Judgment Debtors (JDs) and are entitled to benefit of Proviso (ccc) to Section 60(1) CPC.

I have carefully considered the matter. Principal borrower and guarantor had died before the filing of the suit. The suit was filed against petitioners and proforma respondents 2 to 11 and was decreed against them. Consequently, petitioners and proforma respondents No. 2 to 11 themselves are Judgment Debtors (JDs) and they are not legal heirs of JDs. In view thereof, judgments in the cases of K.L. Bawa (supra) and Sheela Rani (supra) are not attracted to the instant case. In those cases, Judgment Debtors against whom the decrees had been passed had died and consequently, residential houses of their legal heirs were held liable for attachment. In the instant case, however, petitioners and proforma respondents No. 2 to 11 themselves are JDs and they are not legal heirs of the deceased JDs. Mere fact that they are legal heirs of borrower and guarantor would not deprive them of the benefit of Proviso (ccc) to Section 60(1) CPC because they cannot be said to be legal heirs of deceased Judgment Debtors. On the other hand, petitioners and proforma respondents No. 2 to 11 themselves are JDs and are, therefore, entitled to benefit of Proviso (ccc) to Section 60(1) CPC, according to which one residential house of JD is exempted from attachment subject to conditions specified therein. In the instant case, petitioners have alleged that they are separate owners of one residential house each in question and consequently, the said houses are exempted from attachment in view of Proviso (ccc) to Section 60(1) CPC. The Executing Court committed error and illegality in holding that petitioners are not entitled to the benefit of the said provision being legal heirs of deceased JDs although petitioners themselves are JDs and consequently said benefit could not be denied to them.

For the reasons aforesaid, I find that impugned order passed by the Executing Court is illegal and suffers from jurisdictional error. Consequently, the instant revision petition is allowed impugned order (Annexure P-5) passed by the Executing Court is set aside. Applications/objections (Annexures P-1 and P-2) filed by the petitioners are allowed and houses in question are held to be exempted from attachment in execution of the money decree sought by respondent No. 1-DH. Accordingly, the said houses are released from attachment. However, DH shall be entitled to execute the decree in accordance with law in any other manner.