Revision petition challenging an order auctioning the judgment debtor's residence for decree realization. Court notes prior dismissal on Section 60(1)(c) grounds and petitioner's failure to pay despite extensions.
Revision petition dismissed; auction order upheld.
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C.R.No.6013 of 2010(O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R.No.6013 of 2010(O&M)
Date of Decision: 15.11.2011
Jit Ram
....Petitioner
Versus
Gurbachan Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
Present: Mr. K.S. Hissowal, Advocate for the petitioner.
Mr. Dinesh Nagar, Advocate for the respondent.
JASWANT SINGH, J
By filing the present revision petition under Article 227 of the Constitution, petitioner-judgment debtor has laid challenge to the impugned order dated 22.8.2010 (P.1) passed by learned Civil Judge (Sr. Division), Hoshiarpur whereby the learned Executing Court has ordered for auction of the house of the petitioner for realization of the decretal amount.
Brief facts of the case are that the respondent-Decree holder filed a suit for possession by way of specific performance on the basis of agreement to sell dated 1.3.1996 regarding the suit property for a sale consideration of Rs.1.5 lacs and received Rs.1,10,000/- as earnest
#2#
C.R.No.6013 of 2010(O&M)
money. Said suit was decreed by the learned trial Court vide judgment and decree dated 29.9.1999. On an appeal having been filed, the same has been modified vide judgment and decree dated 19.5.2003 passed by the learned Appellate Court to the extent that the plaintiff-decree holder will be entitled to refund Rs.1,10,000/- along with interest at the rate of Rs.12% per annum from the date of agreement till its realization by way of damages. Thereafter, execution proceedings were initiated by the decree holder and the impugned order has been passed, hence the present petition.
Learned counsel for the petitioner argues that the petitioner is poor man and has only one house and in view of Section 60 (1)(c) CPC, the impugned order is not sustainable and liable to be set aside.
On the other hand, it is argued by learned counsel for the respondent that despite dismissal of the earlier revision petition filed by the petitioner, he has neither disclosed the factum of earlier order passed by this Court nor paid the decretal amount.
After hearing learned counsel for the parties and perusing the paper book, this Court does not find any merit in the present petition and the same deserves dismissal.
It is not in dispute that the judgment and decree dated 19.5.2003 passed by the learned Additional District Judge, Hoshiarpur has become final between the parties. It is also not in dispute that on earlier occasion also, Civil Revision No.6200 of 2009 against the order dated 18.9.2009 rejecting the objection petition filed by the JD-
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C.R.No.6013 of 2010(O&M)
petitioner, has already been dismissed by this Court vide order dated 27.10.2009 in which the point for consideration was Section 60 (1)(c) CPC. The operative of the said order reads as under:
“After hearing learned counsel for the petitioner, I am of the opinion that the instant petition is devoid of any merit. Section 60 (1) (c) of the Code of Civil Procedure reads as under:
“Houses and other buildings (with the materials and the sides thereof and the land immediately enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him.”
The learned executing Court rightly held that the case of the petitioner did not fall under the said provision as the petitioner is working as a Class-IV employee in the office of SDO (Mechnical) Public Health, Sub Division, Hoshiarpur and is drawing a salary of Rs.8300/- per month. The judgment was passed by the learned Additional District Judge on 19.5.2003 and the petitioner has failed to make the refund of the amount in question to the decree holder since then. In these circumstances, the learned Executing Court rightly held that the decree in amount could be recovered by attaching/sale the house of the petitioner.”
It is also not disputed by the petitioner-JD that the order dated 27.10.2009 passed by this Court has also become final. It is also not in dispute that before this Court on 2.2.2011, learned counsel for the petitioner had prayed for two months time to pay the remaining part of the decretal amount due and the case was adjourned to 4.4.2011. On 4.4.2011, it was again prayed on behalf of the petitioner-JD as last opportunity to pay the decretal amount and the case was adjourned to
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C.R.No.6013 of 2010(O&M)
30.5.2011. Before proceeding further, it is apposite to reproduce order dated 4.4.2011, which reads as under:
“Learned counsel for the Judgment Debtor-petitioner prays for a last opportunity to pay the remaining part of the decretal amount.
Learned counsel for the decree holder/respondent on instructions from his client, who is present in the Court, has no objection to such request. Adjourned to 30.5.2011.
It is clarified that in case on or before the next date of hearing arrears of decretal amount is not cleared then the interim order shall stand vacated.”
On 30.5.2011, the position remained the same and the case
was adjourned to 3.6.2011 on which date, the following order was
passed:
“Learned counsel for the petitioner/JD submits that as on today the outstanding amount as per the decree is approximately Rs.4 lacs (decretal amount plus interest) and the petitioner has already deposited Rs.1 lac with the Registry of this Court to show his bonafide. He is tendering another sum of Rs.50,000/- in cash in Court today. He further states that the retiral benefits of the petitioner have not yet been released. However, he undertakes to pay the entire dues on such release or otherwise in instalments. He prays for a short adjournment to give an undertaking by way of affidavit before the next date detailing the schedule of payment. Counsel for the respondent/decree holder has accepted the amount of Rs.50,000/- without prejudice to his rights and handed over the same to the respondent who is present in court. He has no objection if the payment is made as per the terms of the decree though in instalments or at the
C.R.No.6013 of 2010(O&M) #5#
release of his retiral dues, whichever is earlier. It is further prayed that the Registry be directed to release the sum of Rs.1 lac deposited by the petitioner. Adjourned to 12.8.2011 for further orders.
Registry is directed to release the deposited amount of Rs.1 lac to the respondent/decree holder.
Petitioner is directed to get the release of his retiral benefits expedited and if they are not so released before the next date of hearing, then he shall file an undertaking indicating the reasons for non-release of the retiral benefits as well as the proposed schedule of payment of the outstanding dues.”
On 3.6.2011, the case was adjourned to 12.8.2011, on
which date also, this Court passed the following order:
“Learned counsel for the petitioner seeks a short adjournment to pay the outstanding decretal amount in compliance of order dated 3.6.2011.
In case before the next date, the outstanding decretal amount is not paid, then the petitioner shall be present in court along with his affidavit detailing the reasons. List on 20.10.2011.”
On 20.10.2011, none appeared for the petitioner and the matter was posted for 9.11.2011. On that date also, proxy counsel on behalf of the petitioner again sought an adjournment and the hearing was deferred to 15.11.2011 i.e today.
Today, neither the decretal amount has been paid nor any plausible explanation on behalf of the petitioner has been given by way of any affidavit in pursuance of order dated 12.8.2011.
On the contrary, an application bearing C.M.No.27065-CII of 2011 has been filed on behalf of the respondent-DH for vacation of
C.R.No.6013 of 2010(O&M) #6#
stay, duly supported by an affidavit and in paragraph 10 whereof, it is specifically submitted that the petitioner-JD has received his retiral benefits to the tune of Rs.3,97,318/- between 28.3.2011 to 6.6.2011 and para 10 of the application reads as under:
“That in the meantime, the applicant/respondent has gathered the information regarding the ex-employer of the petitioner and the payment of the retiral benefits of the petitioner. It is brought to the notice of this Hon'ble Court that from the office of the Executive Engineer, Water Supply and Sanitation Division, Shaheed Bhagat Singh Nagar, the petitioner has received the retiral benefits on the following dates:
| Leave encashment | Rs.23469.00 | 28.3.2011 |
|---|---|---|
| G.P.F | Rs.65732.00 | 18.3.2011 |
| Gratuity | Rs.297875.00 | 26.5.2011 |
| Revisedpay arrear | Rs.10242.00 | 06/06/11 |
| Total | Rs.397318.00 |
The cumulative effect of the facts and circumstances
narrated above makes it abundantly clear that this Court has already been extremely liberal towards the petitioner-JD on number of occasions to deposit the decretal amount but he has failed to do the needful without any tangible explanation and is absolutely misusing the process of this Court, which cannot be permitted.
Without commenting any further, this petition is dismissed being devoid of any merits.
November 15, 2011 ( JASWANT SINGH ) manoj JUDGE
3 issues framed by the court
Whether the impugned order auctioning the petitioner's house for realization of decretal amount is sustainable under Section 60(1)(c) CPC.
Whether the petitioner has defaulted in paying the decretal amount despite repeated adjournments and orders by this Court.
Whether the petitioner has misused the process of this Court by failing to comply with orders to deposit the decretal amount.
2 provisions across 2 enactments
Jit Ram
Gurbachan Singh
Jaswant Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
