‘'. STATE OF PUNJAB AND ANOTHER . y. : 7 -.. DINA’NATH . ee November 21, 1983 . ,
[AS P, Sen. AND D. P. Manon. JJ.] Code, of Civil Procedure. I 908, Ss, 2(2) and oat) a ce).
_ Residential house exempt ‘from attachment and sale in execution of court
- décree—Collecor. whether competent to order ¥ attachment and sale ‘of residential house under Land Revenue Recovery. Act. . . ‘Punjab Land Revenue Act 1887. ‘Liquor vendor—Failure ‘to Pay licence fee—Recovery initiated under Land Revenue Recovery Aat— Collector. if could order attachment and sale. ofresid ential house.
The respOndent-a liquor vending licensee defaulted to pay license ‘fee inspite of repeated remindears. Recovery proceedings under the Punjab--Land | ‘ Revenue Act, 1887 were initiated against: him. The Collector issued a procla- mation prohibiting the transfer or creation of a charge by the respondent on his
‘half share in an immoveable property, consisting of a plot‘of land and a buil- ding thereon, and notified the property for auction, . at ' The he respondent, filed a suit for permanent ‘injunction restraining the appellant—State and the Collector from auctioning his half share, on the ground ., that the building was being used by him for his 1esidence, and he had no other
: residential house, and that therefore the half share of the residential house was exemipt from attachnient under clause (ccc) of the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908. The trial court dismissed the 7 suit and this order was confirmed i in appeal by the District Judge.
‘Allowing the respondent's second appeal, the High Court upheld his
_contention, and issued a permanent injunction only with regard to that portion ‘ - of the building in which he was residing. . .
-Allowing the appeal to this Court; . ..
HELD : (1) The High Court was wrong” both in its criticism of the subordinate courts arid in allowing the respondent's second appeal. {847 E]
* o?
_*
-PUNIAB Y. DINA NATH (Madon, J.) 948
Pa
9... Section 60 of the Code has no application to attachment. and sale _in “any proceedings other than in execution.of a decree of a civil court. It applies only to execution of a decree of civil court. It declares what properties are liable to be attached and sold in execution of such. a‘decree and thé proviso to sub-section (1) of section 60 sets out the properties which are not liable to such -attachment or sale. The expression “such attachment or sale” in the proviso refers to the attachment and sale mentioned in sub-section (1) of section 60, that, : is to attachment and sale in execution of a decree of a civil court. The section does not apply to an attachment and sale under any other statute: unless made expressly applicable thereto, (ee H; 848 A-B]
In the instant case- the attachment and ‘the auction sale. were bot in ~ execution of any decree of a civil court but were in pursvance of an order. ‘made by an’ officer authorised adopt proccedings under the Punjab
Land Revenue Act, 1887 for recovery of revenye due to the State.. There isno *
. provision in this Act which makes the provisions of seclion 60 of the Code applicable to attachment and sale for recovery of revenue under. the said Act. ; . . (848 D- -E}
. CIvIL APPELLATE JURISDICTION > Civil Appeal No. 7494° of 1983, , oo
. Appeal by Special eave from the “Judgment and “ Ofder dated _ the 6th May, 1981 of the Punjab & Haryana High. Court . in R. S. A. No. 2944 of 1980. :
s. K. Bagga for the Appellants “ | ‘The Judgment of the Court was delivered by
_ “Manon, J. This appeal by special leave from. the Judgment and and Decree in Second Appeal of the Punjab and Haryana. High © Court ‘involves the determination of the question whether section 60 of the Code of Civil Procedure, 1908, applies to an attachment and sale in revenue recovery proceedings adopted under the Punjab. Land |
Revenue Act, 1887 (hereinafter referred to as “‘the said Act”).
The facts which have given rise to this question are that ‘Dina Nath the Respondent along with one Gora Lal and Sat Pal, had been granted a liquor vending licence for the year 1968-69 by the Excise and Taxation Department of the’State of Punjab, Patiala. Division, -in respect. of which they had to pay a sum of Rs, 1,38,000 as licence fee. The licehcees paid a sum of Rs. 86,450, leaving the balance unpaid i in spite of repeated. reminders. Ultimately, recovery proceedings under the said Act. were started by the department and the
. Collector, 1 Excise and Taxation’ _ Depaitment, Patiala, by his’ order .
D>.
a
846. 7 SUPREME COURT REPORTS _ (1984 1 s. oR
- dated January 16, 1976, issued a : proclamation prohibiting the trans- _ fer or creation of a charge by the Respondent of his half share in “an - immovable property consisting of a plot of land bearing Khewat: No. 374, Khatunj No. 511, Khasra No. 397/0-19, situate in village Ghagga, with a building constructed thereon. The auction in respect of the said share of the Respondent in the said property was -notified for June 14, 1977. Just a day prior to the holding of the said auction
‘sale the Respondent filed a suit in the Court of Sub-Judge, 1st Class,
Patiala-C, being Suit No. 472/13-6-77, against the State of Punjab and the Collector-cum-Deputy Excise and Taxation Commissioner, Patiala Division, for a permanent injunction restraining the State and — the Collector-cum-Deputy Excise and Taxation Commissioner from auctioning his said half share. The contention of the Respondent was that a part of the building standing on the said plot of land was being used by him for his residence and he had no other residential house and, therefore, his said half share-was exempt from attachment under clause (ccc) of the proviso to sub-section (1) of section 60 of the Code-of Civil Procedure, 1908 (hereinafter Teferred to: as the
" ‘Code’), insertéd in the said section 60 bya State amendment.’ The proviso to sub-section (1) of the said section 60 sets out - the properties which. are not liable to attachment or ‘sale, and the said clause
(cg) provides as follows :
(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) belorfging 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.”
It is pertinent to note that in the said suit the Respondent did not challenge his liability. to pay the amount claimed from him. Several contentions were raised in the written statement filed by the Appellants, who were the defendants to the said suit, including the contention that the property attached and notified for sale was not exempt from attachment and sale. The ABpellants also contested the _~ jurisdiction of the court. The Trial Court upheld both these conten-
' tions and dismissed the suit with costs, The Respondent: then filed ee haliere s atk oo ms .
PUNJAB ¥, DINA NATH (Madon, J.) 847 an appeal to the District Judge, Patiala: Being Civil Appeal No. 554 of 5.9.79, The Additional District Judge, Patiala, who heard-the said appeal, dismissed it with |costs. The Respondent thereupon approached the Punjab and Haryana High: Court in ‘second appeal,
‘being Regular Second Appeal No. 2944 of 1980. The learnéd Single
Judge of the High Court, who heard the said appeal, after observing
- that “‘the conclusion arrived gt by the trial court on facts was per- ’ verse whereas the appellate court applied totally a wrong law in © ‘ deciding the appeal”, allowed the-said second appeal, holding that the portion of the said building used for residence was exempt from attachment and sale under clause (ccc) of the proviso to the said section 60, while that portion in which the liquor shop was situated was liable to be attached, and accordingly issued ‘a permanent injunc- - tion with regard to the portion in which the Respondent was residing and dismissed the suit so far as it related to the portion -of the building in which the liquor shop was situated. The parties were further directed to bear their own costs. . The question of jurisdiction
- of the civil court to entertain and try the suit filed by the Respondent does not appear to have been raised before the High Court. It is against this judgment and decree of the High Court that this appeal. is directed.
In our opinion, the learned Single Judge of the High Court was wrong both in his criticism of the subordinate courts and in allowing
_ the Respondent’s said Second Appeal. Section 60 of the Code”
specifies the properties which are liable to attachment and sale in execution-of a decree. The opening words of sub-section (1) of section 60 are “‘The following property is liable to attachment and sale in execution of a decree”. Clause (2) of section’ 2 of the Code defines the term “decree”. The relevant provisions of the said definition are as follows : .
-“(2) “decree” means the formal - -expression of an adjudication which, so far as regards the Court expressing it, ‘conclusively determines the rights of the parties with regard to all or any of the matters in. controversy «i in the suit and may be either preliminary of final. .
Section 60 of the Code thus applies only to execution of the decrees of civil courts and declares what properties are liable to be - :
attached and sold in execution of such a'decree’ and the proviso to sub-section (1) of section 60 sets out the properties which are ‘not liable to such attachment or sale. The opening words of the said
“3
848°C SUPREME COURT REPORTS * 11984} 1 s.c.k.
«
- proviso:are ‘Provided that the. following particulars shall not: be .. liable to such .attachment or sale, namely”..:— The expression .
“such attachinent or sale” in thé said proviso refers to the attach-
+ ment and sale mentioned in sub-section (1) of section 60, that: is,.to .
attachment and sale in execution of a a decree: Ona plain reading of the said section 60, it is clear that that section has no application -
. toattachment and sale in any proceedings other than in execution of
_ a decree ofa civil court. The provision#of section 69 of the Code. ‘ do not apply.to an attachiment and sale under any other statute made expressly applicable thereto. So far as the said Act is concer- ned, it contains a complete code providing for the modes - and machinery for recovery of arrears of revenue. The attachment in _ question was levied‘under the provisions of the said Act and the _ sale which was notified was also under the provisions of the said Act.
: . The attachment levied on, and the auction sale notified in respect of,
- the Respondent’s half share in the said property were not in execution of any decree of a civil court but were in pursuance of the order -made by an officer authorized to adopt proceedings under the said
Act for recovery of revenue due to the State. There is no provision .
_ in the said Act which makes the provisions of section 60 of the Code ‘applicable to attchment and sale for recovery of revenue under the said Act. _ The propertits, if any, which ate exempt from attachment .”
and sale i in revenue recovery proceedings under the said. Act would
"be only such properties as-are so exempted by the said Act. There is ~ no provision in the said Act corresponding to cl. (ccc) of the proviso to sub-section (1) of section 60 of the Code, and the half share of the Respondent in the said” property was, therefore; not exempt from attachment and sale in revenve recovery proceedings adopted under,
_° the said Act. Consequently, the- ‘Respondent's suit ‘was ‘liable ° to be. _ dismissed-on this ground alone. ; -
For the reasons set out above, we allow -this appeal and set -aside the Judgment and Decree of of the Punjab and. Haryana High Court and dismiss with costs the said Regular Second Appeal No.
.. 2944 of 1980 filed by the Respondent and restore the decree passed ’ by'the Addition District Judge, Patiala-C, in Civil Appeal No. 554 of .
_ 5.9:79 and the decree passed by the Sub-Judee, Ist Class, - Patialacc, _ in Suit No. 472/13.6.17. os ; ao
The Respondent will pay to the Appelants the costs of this appeal.
. N.V.K. - : - ae oe : . | - Appeal allowed.
‘rr - -