State of Punjab and Another versus Dina Nath

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44 ' . STATE OF PUNJAB AND ANOTHER ~ ' A .. ., I v . • DINA'NATH •. ·' B November 21, 1983

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[A.P. SEN AND D.P. MADON, JJ.)

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Code. of Civil ProcedureJ908, Ss. 2 (2) a.nd 60(/) (ccc).

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.ReSider.tial hous.e exe111p't-fro1n attachment and sale in execution (If eourt deCree-Collecor . .whethef compete1't to order attach1ne11t and sale 'of residential hnuS~ un~er Land Revenue Recovery. Act: .

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. :Punjab Land RevcnUe Act 1887." ·Liquor' v"endor-Failre ·to pay licence fee-'-Recovery initiated ·under Land Revenue Recoi•erj ActCo/!ector. if' could D o;der attacht11f!nt and sa/e.ofresid entiQ/ l10Use.

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The resp-Ondenta liquor vending licensee defaulted to pay license fee inspit of rcpeatCd remndears. Rec:oier.Y ProCeedings under t!1e Punjab ··Land , ReVenue Act, 1887 were initiated aga_inst·him .. The Collector issued a prciclamation prohibiting the tr·ansfer or CreatiQn ·or a charge by· the respondent on his E 'half sha.re in an immoveable property, consistiOg of a' plotaf land· and a building thereon, and notified th~ p~operty for ·auction.

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The respondent, filed a suit for pern1al).ent injunctiOn restraining the apjJellarit-State. a"nd the Collector from_ auctioning his half share, oil the iround .·• that the building was being used by hi1n for his -1esidence, and he had no other F residential house, an.d that therefore the half share of the re'sidcntial _h.ouse Was· excrript from attachrrient under .clause (ccc) of the proviso to sub-section ( J) of seCtion 60 suit and this of order the Code was of con~rmed Civil Procedure, in appeal . . 1908.. by . the The District.Judge. "trial court disn1issed the

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Allowing the respondent's second appeal, the High Court upheld his G contention, and issued a: pCrmanent i"njunction only with' regard to that portion. . j)f thC? building in which he was r~siding. ·

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HELD : (1) The High Court was wrong .·both in its criticism of the sub.ordinate court& ari~ n allowiri the r~sf>ondent·s. secohd a'ppeal. [847 EJ

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PUNJAB v. DINA NATH (Madon, J.)

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845

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. 2. :section 60 of the COde. has nO pplication to attachfficn't and sale . . in" any proceedings othei than in execution.pf a decree of a civil court. It applies · .only to Cxecution of a decree of civil court: It 4clares what, prop-er'ties are Iiablc ·ta be attached-and Sold hi execution of such. a ·decree and the proviso to sub-acctfon (1) of section 60 sets out th~ proerti whiCh arc at tiahlc.to such -attachment or sale. The expression '•such attachment or sale" in the proviso refers to the attachment <ind sale mentioned in sub.:.section (1) Of secti911 60, that is to attachment and sale i,n exeUtion of a decrCe of a civil.court. The section does n_ot apply to an attachmen~ and Sale under any other statute. unless made expressly applicable thereto. [84.7 H; 848. A,B]

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In the instant case· th.e auaChment and the auction sale were npt in execution ·of any decree of a civil coUrt but Were iri purs1,1ance of an order ·made by an· officer authorised ii.dopt proceedings under the. Punjab Land.Revenue Ac~. 1887 for recovery of rCven\J;e due to the State.· There is no provision in this Act which m·akes the provisions of section 60 of the Code applicable to attachment and sale for ecoery of reVenuC under. the said Act. [848 D-E]

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Civil Appeal No. 7494 · of

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Appeal by Special :leave from the Judg!llent and· Order dated the 6th May, 1981 of the Punjab~ Haryana. High Court in R-.S.A. No. 2944 of 19.80. .

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S.K. Bagga for the Appellants.

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The· Judgment of the Court was delivered by

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MADoN, J. This appeal by speci~l leave from. the Judgment and and Dec,ree 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"). . . .

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The facts which have given rise .io 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 T.axation Department of the'Sta(e of Punjab, Patiala. Division," . in respect. of which they had to pay a sum of Rs. 1,38,000 as· licence fee. The· liceitcees paid a sum of Rs. 86,450, leavfog the balance uilP,ai.d in spite of repeated reminders. Ultimately, rec~very proceedings under the said Act. were started by the department and the Collector, Excise and Taxation. Depattment, Patiala, by his· order .

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846

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SUPRBME Cc;>URT RBPORTS

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dated January 16, i976, issued a proclamation prohibiting the transA fer or creation of a charge by the Respondent of his half share in 'an immovabl.e. property consisting of a plot of land ·bearing Khewat No. 374, Khatuni No. 511, Khasra No. 397/0-19, situate in village Ghagga, with a building cons1!ructed. thereon. The auctiol! in respect of the said share of the Respondent in the said property was notified B for June 14, 1977. Just a day prior to the holding of the said auction sale the Respondent filed a suit ip the Court of Sub-Judge, !st Class, Patiala-C, be_ing Suit No. 472/13-6-77, against the State of Punjab and the Collector-cµm-Deputy Excise ·and Taxation Commissioner, · Patiala Division, for a permahent injunction restraining the State al)d the Collector-cum-Deputy Excise and Taxation Commissioner from c 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 nsed by him for· his residence and he had .no other residential house and, therefore, his said half share was exempt from attachment under ciause (ccc) of the proviso to sub-section (I) of section 60 of D the Code· of Civil Procedure, 1968 (hereinafter referred to as the 'Code'), inserted in the said ·section 60 by a State amendment. The proviso to sub-section'(!) of the said section60 sets out· the proper· ties which.are not liable to attachment or ·~ale, and. the said clause (ccc) provides as follows :

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"(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;

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P;ovided that the protection afforded by this clause

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.. shall not 'extend to any property specifically. charged with the debt sought.to be recovered.'¹ ·

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It is pertinent to note that in the said suit the Respondent did G not challenge his liability: to pay the amount clajmed from him. Several contentions were rai;ed 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 . · H jurisdiction of the court. The Trial Court upheld both these conten'. tious and dismissed the suit with cpsts, The Respondent· t.hen filed

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847

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PUNJAB ii. DINA NATH (Madon, J.)

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•t ' J f. ~ 11 tJ i '~ ), ,i '

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an appeal to the District Judge, Patiala; !icing Civil Appeal No. 554 of 5.9. 79·. The Additional District Judge, Patiala, who heard·ihc 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 learned Single Judge of the High Court, who heard the said appeal; after observing that "the conclusion arrived~! l;iy the trial court on facts was perverse whereas th" 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 sectio_n 60, .while that portion in which the liqµor shop was situated was liable to be attached, and accordingly issued ·a permanent injunction ·with regard to. the portion in which the Respondent was tesiding and dismissed the suit so far as it related to the portion -of ihe . 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 cour\ 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.

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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 ofa ·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 arc as follows : .

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0 (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 an or any of the matters in. co11troversy. in the. suit.and may be either preliminary of final. ... "

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Section ·60 of the Code thus applies only to execution of the clecrees 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 (I) of sec.ti on 60 sets out the properties which are not Hable to sue]l a.ttachment or sale. The opening wonjs of the said

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848'

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. SUPREME COURT REPORTS

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proviso: are "Provided tha~ the. following particulars shall not· be .. A . liable to such attachment. dr sale, . name'iy" .. :- . The expression. "such ilttachlnent or sale" in .the said 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 a decree, ·On a plain reading of the said section 60, it is clear that that section has no application B to· attachment and sale in any proceedings other than iri execution of a decree of a civil court. The provisiontof section 60 of the Code do not apply to an attachment and sale under any other statute i:nade 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 . question was levied.under the provisions of the said Act and the sale which was n:qtified was also uniler 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 D 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 t~ attchment and sale for recovery of revenue under the said Act. . The properti~s. if any, which are exempt from attachment and sale in revenue· recovery proceedings under the said. Act would .E 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-sedion (1) of 'cct16n 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, thc·Res(londent's suit was ·liable ·to 6e· F dismissed dn this ground alone. ·

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For.the reasons set out above, we allow ·this appeal and set . aside the Judgment arid Decree of of the Punjab anc! · Haryana High Cnrt and dismiss with costs.the said Regular Second Appeal No . G . 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 th decree passed by the Sub-!udge, i'st C.Jass, Patiala-C, . in Snit No. 472/13.6:77.

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~ppellants the costs of this

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H The Respondent will pay to the appeal.

N.V.~. .

·Appeal allowed.

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