UCO Bank vs Gorkhi Ram and Others

D.P. Sood, J.—The UCO Bank is the decree-holder pursuant to the decree passed in their favour and against the judgment-debtors. They moved an application under Order 21, Rules 43 and 54 of the Code of Civil Procedure, 1908, for attachment of the residential house belonging to judgment-debtor No. 1, besides seeking other reliefs. Judgment-debtor No. 1 for himself and on behalf of judgment-debtor No. 2, in his reply raised an objection to the attachment of the residential house by contending that the said house was not attachable in view of the amendment made to Section 60 of the CPC u/s 21.

The fact that the house is a sole residential house of the judgment-debtors, has been denied by the decree holder in their rejoinder.

All these pleadings have been supported by affidavits by the respective parties. They have also adduced evidence in the form of affidavits and same allegations have been corroborated by each one of them.

I have heard learned counsel for the parties at length. During the course of arguments, my attention has been brought to Section 21, in particular, besides others of the Himachal Pradesh Debt Reduction Act, 1976 (hereinafter referred to as " the Act of 1976 " ), whereby an amendment by way of Clause (ccc) to Section 60 of the CPC has been brought about. On the strength of it, it has been vehemently submitted that the aforesaid sole residential house of the judgment-debtors cannot be attached and sold in execution proceedings.

There is no dispute to the legal proposition that by virtue of the aforesaid amendment, one main residential house and other buildings attached to it (with the material and the site 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, which is not charged with the debt sought to be recovered as in the instant case, it is exempt from attachment in execution of a decree. The judgment-debtors have taken shelter by raising the said objection. The controversy has arisen between the parties as to whether the attached property in the instant execution proceedings referred to above was the main residential house of the judgment-debtors and as such exempt from attachment. An issue was accordingly framed by this court on July 17, 1991, as under :

(1) Whether the property in question is not liable for attachment as alleged in the reply to the application ?

Relief.

As indicated above, the parties have adduced evidence on this issue, but I feel that consideration thereof is unnecessary as the provisions relied upon by the judgment debtors in support of their contention that the property is exempt from attachment depends upon the legal question as to whether the said provision has or has not been repealed or whether the said Act applies or does not apply to the loan advanced by the plaintiff bank for the purpose of trade.

Admittedly, as per the decree, the loan was advanced for the purchase of the truck by the plaintiff-bank. Also, the decretal amount is still recoverable. Further, there is no controversy that the house in question has been sought to be attached in the instant execution proceedings by the decree holder. In that view of the matter, two questions required to be determined by this court are :

(1) Whether Section 21 of the Act of 1976 applies to the decree in question, and

(2) Whether by amendment of the CPC in the year 1976 by Section 21 of the Himachal Pradesh Debt Reduction Act, 1976, Section 60 of the former CPC stands repealed.

Both these points are intrinsically mixed up together. As such, in order to avoid repetition of discussion of the legal provisions. I proceed to decide them together. In this regard, we will have to consider various definitions given in Section 2 of the Himachal Pradesh Debt Reduction Act, 1976, vis-a-vis the expressions "court", "creditor" "decree to which this Act applies "," loan "," suit to which this Act applies ", " debtor " and " notification ", which have been defined as under :

(i) " court" means a civil court ;

(ii) " creditor " in Chapter V means a person who, in the regular course of business, advances a loan as defined in this Act and includes the legal representative and the successors-in-interest whether by inheritance, assignment or otherwise, of a creditor ;

(iii) "decree to which this Act applies" means a decree passed either before or after the commencement of this Act in a suit to which this Act applies ;

(iv) " loan" means an advance in cash or kind and includes any transaction which in substance amounts to such advance but does not include an advance by the Central or State Government or by a local authority authorised by the State Government to make advances, by a co-operative society or by a bank or by the Life Insurance Corporation of India or a loan taken or used for the purposes of trade ;

(v) " suit to which this Act applies " means any suit or proceedings relating to loan ;

(vi) " debtor" means persons who receive a loan as defined under this Act ;

(vii) "notification " means notification published under proper authority in the Rajpatra, Himachal Pradesh.

Admittedly the H. P. Act of 1976 received the assent of the President on August 2, 1976. The same was published in the Himachal Pradesh Gazette (Extraordinary) on the same date. However, it was enforced on April 1, 1979, by means of a notification issued by the Himachal Pradesh State Government as envisaged u/s 1(3) of the Act of 1976.

It has been fairly conceded by Shri Deepak Gupta, learned counsel appearing on behalf of the judgment-debtors that loan in the instant case does not fall within the definition of " loan " as is envisaged u/s 2(ix) of the H. P. Act of 1976, nor is it a decree to which the aforesaid Act applies, as defined u/s 2(vi) thereof. His main thrust is that it is a decree passed by a civil court as is envisaged under the provisions of the CPC of 1908 ( 5 of 1908). He has further pointed out that the said amendment is in addition to the protection given by Section 60 of the CPC and it is not inconsistent with the provisions of the said Code. u/s 14 of the H. P. Act of 1976, it has been laid down that " the provisions of the Code of Civil Procedure, 1908 (5 of 1908), save in not being inconsistent with the provisions of this Act, shall apply to all proceedings under this Act." Thus, according to the submissions so made, the house in question is not liable for attachment nor is it for sale by the order of this court in these execution proceedings.

It is a well-settled proposition by the Supreme Court in 1986 Supreme Court Full Bench Rent Cases 323 that :

"The effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provisions in the Code have been amended or modified by the Amending Act and that was subject only to what was found in Sub-section (2) of Section 97. Sub-section (3) of Section 97 provides that save as otherwise provided in sub Section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to Sub-section (2) of Section 97."

The close perusal of the aforesaid observations show that any amendment in Section 60 of the CPC as it stood after the amendment made vide CPC (Amendment) Act, 1976, stood repealed. Here in the instant case, at the cost of repetition, the submission is that the amendment is in addition to the protections provided u/s 60 of the CPC and secondly that it had been enforced vide notification issued by the Himachal Pradesh State Government and consequently enforced on April 1, 1979. There is no dispute about the decree which is being executed that it is covered under the definition of Section 2(2) of the CPC and is not a decree to which the H. P. Act of 1976 applies. The arguments of learned counsel for the judgment-debtors on the very face of it appear to be quite attractive, but when examined closely, it appears to be meritless. Obviously, the amendment brought about in the H. P. Act of 1976 is a State amendment to a provision which existed in the Code enacted by the Centre. The basic principle is that in case a Central Act is enforced subsequent to the enforcement of a State Act and if the latter is inconsistent with the provisions of the former, such inconsistent provisions are to be deemed to have become still-born. In the instant case, admittedly, amendment to the CPC u/s 97 was brought about in the year 1976 and it was assented to by the President on September 9, 1976, though it was subsequently enforced on February 1, 1977, by publication of a notification to that effect in the Central Gazette, Obviously, the State legislation amending Section 60 was enforced on April 1, 1979. It was a prior amendment to that of the amendments brought about in the Code of Civil Procedure, 1908. In that view of the matter, the State legislation bringing such amendment has become still-born. The fact that amendment to Section 60 by way of Section 60(ccc) has been brought about by the State of Himachal Pradesh was in the mind of the Legislature and it cannot be said that such a fact was not known to them. In that view of the matter, the facts of the instant case are covered by the observations of the Supreme Court in the case of Ganpat Giri Vs. Second Additional District Judge, Ballia and Others, . Thus, from whatsoever angle this aspect of the case be considered, this court has no alternative but to hold that the amendment so brought about by the State legislation stood repealed. Accordingly, the objections are dismissed.