State of Punjab & ANR Vs.
Dina Nath [1983] INSC 180 (21 November 1983)
MADON, D.P.
MADON, D.P.
SEN, A.P. (J)
CITATION: 1984 AIR 352 1984 SCR (1) 844 1984
SCC (1) 137 1983 SCALE (2)789
ACT:
Code of Civil Procedure 1908 Ss. 2 (2) and
60(1) (ccc).
Residential house exempt from attachment and
sale in execution of court decree-Collector 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 Act-Collector if could order attachment and sale of residential house.
HEADNOTE:
The respondent a liquor vending licensee
defaulted to pay license fee inspite of repeated reminders. Recovery
proceedings under the Punjab Land Revenue Act, 1857 were initiated against him.
The Collector issued a proclamation prohibiting the transfer or creation of a
charge by the respondent on his half share in an immovable property, consisting
of a plot of land and a building thereon, and notified the property for
auction.
The respondent, filed a suit for permanent
injuction restraining the appellant-State and the collector from auctioning his
half share, on the ground that the building was being used by him to his
residence, and he had no other residential house, and that therefore the half
share of the residential house was exempt from attachment 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 suit and this order was confirmed 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 and in allowing the respondent's second
appeal. [847 E] 845
2. 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 the 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 (I) 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. [847 H; 848 A-B] In the instant case the attachment and the auction
sale were not in execution of any decree of a civil court but were in pursuance
of an order made by an officer authorised adopt proceedings under the Punjab.
Land Revenue Act, 1887 for recovery of revenue due to the state. There is no
provision in this Act which makes the provisions of section 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 Appeal by Special leave from the Judgment and order 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
MADON, 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 attachments 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 licences paid a
sum of Rs. 86,450, leaving the balance unpaid in spite of repeated reminders.
Ultimately, recovery proceedings under the said Act were started by the
department and the Collector. Excise and Taxation Department, Patiala, by his
order 846 dated January 16, 1976, issued a proclamation prohibiting the
transfer 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, Khatuni
NO. 511. Khasra No. 39710-19, 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 (l) of
section 60 of the Code of Civil Procedure, 1908 (hereinafter referred to as the
'Code'), inserted in the said section 60 by a State amendment. The proviso to
sub-section (I) of the said section 60 sets out the properties which are not
liable to attachment or sale, and the said clause (ccc) 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)
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." 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 Appellants also contested the jurisdiction of the court. The
Trial Court upheld both these contentions and dismissed the suit with costs.
The Respondent then filed 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.
294 1 of 1980. The learned, Single t - Judge of the High Court, who heard the
said appeal, after observing that "the conclusion arrived at 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 injunction 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 (I) 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 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 848 proviso are "Provided that the
following particulars shall not be liable to such attachment or, sale,
namely".:- The expression "such attachment or sale" in the said
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. On a
plain reading of the said section 60, it is clear that section has no
application to attachment and sale in any proceedings other than in execution
of a decree of a civil court., The provisions of section 60 of the Code do not
apply to an attachment and sale under any of her statute made expressly
applicable thereto. So far as the said Act is concerned, it contains a complete
code providing for the modes and machinery for recovery of arrears of revenue.
The attachment in a 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 attachment and sale for recovery of
revenue under the said Act. The properties, if my, which are exempt from
attachment and sale 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 revenue
recovery proceedings adopted under the said Act. Consequently, the Respondents
suit was liable to be y dismissed on this ground alone.
For the reasons set out above, we allow this
appeal and set aside the Judgment and Decree of the Punjab and Haryana High
Court and dismiss with costs the said Regular Second Appeal No. 2944 of 1980
filed by the Respondent 2nd 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-Judge, 1st Class, Patiala-C, in Suit No. 472/13.6.7?.
The Respondent will pay to the Appellants the
costs of this appeal.
Back