Swaran Singh vs Financial Commissioner, (Taxation), Punjab and Others

Surinder Mohan Singh and Sat Parkash Respondent Nos. 5 and 6 obtained a decree from the Assistant Collector, Nawanshahr, against Swaran Singh petitioners for recovery of Rs. 4860/- and costs, being the rent of the agricultural land payable by him. In execution of the decree, respondents Nos. 5 and 6 got his house attached and sold which is described in the plan Annexure P. 1. He filed objections against attachment of the residential house before its sale on the ground that the same was exempt from attachment being his self-occupied residential house. These objections were, however, dismissed by the Assistant collector, Ist Grade, Nawanshahr, respondent No. 4 vide his order dated 12-8-1976 on the ground that the same were barred by the principle of constructive res judicata and that he had two house out of which one had been attached. His appeal to the Collector, Jalandhar, was dismissed vide order dated 19-8-1977 Annexure P. 3 on the ground that it was barred by time and there was no justification for condoning the delay. On a revision petition being filed by him, the Commissioner, Jalandhar Division, vide his order dated 8-3-1978 (P. 4) reached at the conclusion that the delay ought to have been condoned by the Collector and the appeal should have been heard on merits. Consequently, the case was forwarded to the Financial Commissioner, Punjab, recommending that the delay should be condoned and the case be remanded to the Collector, Jalandhar, for disposing of the same on merits. The Financial Commissioner (Taxation) Punjab, vide order dated 22-9-1978 Annexure P. 5 did not agree with the recommendations made vide order Annexure P. 4 and instead upheld the order of the Assistant Collector Ist Grade and that of the Collector. Respondent No. 1 observed that the petitioners had failed to satisfy the decree and his one house had rightly been attached and that the decree-holders had quite sportingly prayed that either of the two house of the judgment-debtor (the petitioners) be put to auction to meet the liability. Swaran Singh petitioners thereon filed the present writ petition in this Court praying for the issuance of a writ of certiorari to quash the orders Annexures P. 2, P. 3 and P. 5. Written statement has been filed on behalf of respondents Nos. 5 and 6, who are the contesting respondents.

I have, heard the learned counsel for the petitioners and respondents Nos 5 and 6. The petitioners has categorically asserted that he had only one residential house in village Banga, tehsil Nawanshahr, which was in his occupation. There was no material before the Assistant Collector or the Financial Commissioner to conclude that he had two residential houses. The site plan of house No. 2551 owned by him and in his occupation which was attached in execution in Annexure P. 1. The learned counsel for the petitioners, therefore, contends that in view of the provisions of S. 60(1)(ccc) of the Code of Civil Procedure, 1908 (hereinafter called ''the Code), as applicable to the State of Punjab, the said house being the main and the only residential house of the petitioners was not liable to attachment or sale in execution of the decree passed by the Assistant Collector Ist Grade secured by respondents Nos. 5 and 6. He further proceeds to contend that respondent No. 4 was wrong in his conclusion that because of an earlier objection application filed by him, which had been dismissed, the objection that the residential house was not liable to attachment or sale was barred by the principle of constructive res judicata.

The learned counsel for respondents Nos. 5 and 6 could not dispute the fact that house No. 2551 at Banga as described in site plan Annexure P. 1 was the only residential house of the petitioners and he did not own any other house. He, however, put forward two-fold defence to the contentions of the petitioners. Firstly, he submitted that since the decree under execution had been passed by the Assistant Collector by virtue of the powers conferred on him under S. 77 of the Punjab Tenancy Act, 1887 (hereinafter called ''the Tenancy Act''), it was not a decree of a civil Court and as such the provisions of S. 60(1)(ccc) of the Code were not applicable. The decree was being executed by the Revenue atuhorities and the substantive provisions of the Code and the procedure for execution laid down by the Code has no application. In support of this submission, he placed reliance on State of Punjab and Another Vs. Dina Nath, . His second submission is that the petitioners had earlier made an application on 11-6-1976 raising certain objections against the execution of the decree after the house had been attached on 28-5-1976, which was dismissed by respondent No. 4 on 5-7-1976. At that time it was open to him to raise an objection that his residential house was not liable to attachment but no such objection was raised. The second objection application filed on 13-7-1976, which was culminated into the impugned orders, was therefore, barred by the principle of constructive res judicata.

After giving my thoughtful consideration to the rival contentions of the parties, I am of the view that this petition deserves to be allowed. The house in dispute being the only residential house in self-occupation of the petitioners was exempt from attachment. Dina Nath''s case (supra) has no application to a case where a decree passed in a civil suit by the Assistant Collector Ist Grande under the Tenancy Act is being executed. In Dina Nath''s case recovery of the amount due from a liquor vend licensee was sought to be effected as arrears of land revenue under the provisions of Chapters VI and VII of the Punjab Land Revenue Act, 1887, and in those proceedings his residential house was attached and sought to be sold. In this context the Supreme Court observed that the provisions of the Punjab Land Revenue Act, 1887, provide a complete code of procedure for recovery of an amount as arrears of land revenue and that the procedure provided for execution of a decree in the Code had no application. Dina Nath''s case is, therefore, clearly distinguishable.

Clause (ccc) to sub-section (1) of S. 60 and sub-sections (3) and (6) thereto were inserted by the Punjab Relief of Indebtedness Act, VII of 1934, as amended by Acts XII of 1940 and VI of 1942, which inter alia, made the following provision:--

"60. Property liable to attachment and sale in execution of decree:

(1)-------------------------------

Provided that the following particulars shall not be liable to such attachment or sale, namely:--

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(ccc) 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--------.

(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.

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(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."

The above provision inserted in the Code was meant to afford relief to the poor from onerous indebtedness. If it is held, going by the contention of the learned counsel for respondent Nos. 5 and 6, that these provisions do not apply to execution of a decree passed by a Revenue Officer against a tenant of agricultural land under S. 77 of the Tenancy Act, the object of the provisions would be substantially negatived S. 88 of the Tenancy Act, inter alia, provides as under:--

"88. Procedure of Revenue Courts:--

(1) The State Government may make rule consistent with this Act for regulating the procedure of Revenue Courts in matters under this Act for which a procedure is not prescribed thereby, and may be any such rule direct that any provisions of the CPC shall apply, with or without modification, to all or any classes of cases before those Courts.

(2) Until rules are made under sub-section (1), and subject to those rules when made and to the provisions of this Act;

(a) the CPC shall, so far as it is applicable, apply to all proceedings in Revenue Courts whether before or after decree;

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Section 88 of the Tenancy Act leaves no scope for doubt that the provisions of the Code are applicable to the execution of a decree passed in a civil suit by a Revenue Court under S. 77of the said Act.

In support of his second contention that the objection application dated 13-7-1976 filed by the petitioners stating that his residential house was exempt from attachment was barred by the principle of constructive res judicata, the learned counsel firstly placed reliance on Tara Singh Vs. Nathu Ram, , wherein it has been laid down that were a judgment-debtor failed to plead in the suit or raise in the execution proceedings the objection that the amount due from him could not be recovered from him due to the bar of S. 3 of the Punjab Registration of Money Lenders'' Act, the same must be considered to be barred by the principles of constructive res judicata. This judgment is clearly distinguishable on facts as it has no application to a claim made for exemption of a residential house form attachment in execution of a decree in view of S. 60(1)(ccc) of the Code. He next placed reliance on a Divison Bench Judgment of the Delhi High Court in Matu Ram and Sons and Another Vs. Elgin Mills Co., Ltd. and Others, . It has no doubt been held in this judgment that where in an earlier objection application against execution no plea is raised that the residential house is exempt from attachment and such an application is dismissed, a subsequent application raising such plea is barred by the principle of constructive res judicata. This judgment, however, does not take into consideration the earlier Division Bench judgment of this Court in Pt. Vishnu Datt v. Jai Narain 1966 Cur LJ 921, wherein after taking into consideration the provisions of sub-sections (3) and (6) S. 60 of the Code set out above, it was held as under:--

"It will be apparent that the benefit conferred by the substantive provisions of S. 60(1)(ccc) cannot voluntarily or otherwise be parted with. The rule of res judicata is a rule of estoppel and would not, in my opinion, stand on a higher footing than the conscious waiver. If a conscious waiver is made void, it is hard to conceive that its place will be taken by legal waiver, or in other words, by res judicata".

I am bound by the Division Bench judgment of this Court in Pt. Vishnu Datt''s case (supra) and hold that the application dated 13-7-1976 filed by the petitioners before respondent No. 4 raising objection to the effect that the house attached, being his main residential house, was exempt from attachment was not barred by the principle of constructive res judicata in spite of the fact that an earlier application dated 11-6-1976 against execution filed by him in which this objection was not raised, had been dismissed on 5-7-1976.

The learned counsel for respondents Nos. 5 and 6 then contended that after attachment of the residential house of the petitioners, the same was put to auction and has been sold out during the course of pendency of his appeal and revision before respondents Nos. 1 to 3. In my view, attachment of residential house was void ab initio. It was incumbent on respondent No. 4 before he passed an order of attachment to satisfy himself that the petitioner''s residential house, which was sought to be attached, was not exempt from attachment or sale as is required by sub-section (6) of S. 60 of the Code. Since apparently no such satisfaction was recorded and rather on the bald allegation of respondents Nos 5 and 6 that he had two residential houses, proceedings subsequent to attachment of the house were carried on resulting in sale thereof, the whole proceedings including the sale of his house in auction are void.

Consequently, I allow this petition and quash the orders Annexures P. 2, P. 3 and P. 5 passed by respondents Nos. 4, 2 and 1 respectively. I also quash the sale of the residential house of the petitioners bearing No. 2551 situate of Banga town as described in plan Annexure P. 1 by holding that the same was not liable to attachment or sale in execution of the decree passed against him by respondent No. 4 in favour of respondents Nos. 5 and 6. There shall, however, be no order as to costs.

Petition allowed.