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Kiran Bala Vs. Surinder Kumar [1996] INSC 647 (2 May 1996)

Punchhi, M.M.Punchhi, M.M.Thomas K.T. (J)

CITATION: 1996 AIR 2094 1996 SCC (4) 372 JT 1996 (5) 610 1996 SCALE (4)440

ACT:

HEAD NOTE:

O R D E R

Leave granted.

This appeal arises against an order of limine dismissal of a revision petition passed by the Punjab and Haryana High Court.

The appellant, Kiran Bala, faced more than one suit for recovery of monies in the Court of the Additional Senior Sub-Judge, Dhuri, Punjab. Civil Suit No.636 of 6-8-1991 was filed by the plaintiff respondent against her in order to recover Rs.19,125/- inclusive of interest. Apprehending that she may not alienate her property the plaintiff-respondent obtained on 24-7-1991 an order of maintenance or status quo.

Despite the said order, the appellant on 29-7-1991 sold her residential house in favour of her daughter and her husband's brother for a sum of Rs.20,000/- mentioning the sale-deed the necessity of selling it to pay off her debts.

This development got entangled in the suit and was put to issue. Specifically Issue No.3 raised was to the following effect:

"Whether the sale deed dated 29-3- 1991 executed by defendant No.1 in favour of defendants No.2 and 3 to defeat and delay the claim of the creditors including plaintiff? The finding recorded by the court was that the transfer was hit by the provisions of Section 53 of the Transfer of Property Act, being a fraudulent transfer as the same had been effected to defeat and delay the claim of the creditor- plaintiff. The sale thus having been avoided, was declared null and void by the Trial Court vide order dated 29-7-1994.

The suit otherwise was decreed in the sum of Rs.19,125/- with costs and future interest @ 6 per cent per annum from the date of the suit till realization.

For the money liability incurred by the appellant in another suit, execution petition was filed by the decree- holder plaintiff-respondent and the house, transfer of which had been declared 'null and void' in decision in C.S. No.636 of 6-8-1991, was sought to be attached and sold in execution of the decree, To that, objection was raised by the appellant-judgment debtor that the said house was her main residential house in her occupation and was not specifically charged with the debts sought to be recovered.

It was pleaded that these facts entitled the appellant- judgment debtor to protection of Section 60(1)(ccc) of the Code of (Civil) Procedure, as applicable to the State of Punjab by State Amendment, which does afford such protection. Such claim of the appellant as to the house in question being exempt from attachment or sale, was resisted by the decree-holder on the specious plea that it had been subjected to transfer, even though such transfer had been held `null and void' in C.S. No.636 dated 6-8-1991, and therefore on account of her conduct, the appellant was not entitled to any relief. This defence apparently found favour with the Executing Court on attention being invited to the judgment in the said Civil Suit. The import of Section 60 C.P.C. and the relevant clause applicable to Punjab, granting exemption from attachment or sale of residential house in occupation of the judgment-debtor was not adverted to at all. The objection petition was thus dismissed on 28- 3-1995. The revision petition against that order was dismissed by the High Court in limine on 3-5-1995. Hence, this appeal.

Having set out the above facts. it is crystal clear to us that we have to grant relief to the appellant. It is evident that she sold the house in question ostensibly to pay-off her debts but the sale has been declared by the Civil Court, deciding C.S. No.636 dated 6-8-1991, to be null and void. The effect of that decision would be that the said sale becomes non est and the parties reverted to their original position; meaning thereby that the appellant got a negative declaration that she continued to be the owner-in- possession of the house in question. On that premises, what sequally follows, cannot be withheld merely on account of the conduct of the appellant. Since the legal consequence is that she would be the owner-in-possession of the house, she would definitely be entitled to claim its exemption from attachment or sale under sub-clause (ccc) of Section 60(1) of the Code of Civil Procedure, afore-referred to. Had the claim of the plaintiff in the said suit been negatived as regards the transfer being with the object of defeating or delaying her creditors, the house in question would necessarily have been out of the reach of the decree-holder.

Merely because it has now been reverted back to the judgment-debtor that fact, by itself, would not disentitle the judgment-debtor from raising the legal plea of exemption. In this view of the matter, we are convinced that the Executing Court was in error in dismissing the objection petition of the appellant and so was-the High Court in dismissing the revision petition in limine.

We therefore allow this appeal, set aside the aforesaid orders and sustain the objection of the appellant with the result that the said house cannot be attached or put to sale in execution of the decree.

No costs.

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