Vs. Surinder Kumar  INSC 647 (2 May 1996)
M.M.Punchhi, M.M.Thomas K.T. (J)
1996 AIR 2094 1996 SCC (4) 372 JT 1996 (5) 610 1996 SCALE (4)440
O R D
appeal arises against an order of limine dismissal of a revision petition
passed by the Punjab and Haryana High Court.
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
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.
development got entangled in the suit and was put to issue. Specifically Issue
No.3 raised was to the following effect:
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.
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.
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.
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.
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.
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.
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.