APPASAHEB TULJARAM DESAI Vs. BHALCHANDRA VITHALRAO THUBE

JUDGEMENT

(1.) This is an appeal against the judgment of a Division Bench of the Bombay High Court in Letters Patent Appeal No. 50 of 1953, reversing the decision of Shah, J. and restoring the order passed by the executing court which had been set aside by him.

(2.) Two questions arise for decision in this appeal (1) whether the Wada (house) ordered to be attached by the executing court is Watan Property, and if so, can it be attached in execution of a decree (2) If the Wada is not Watan property, is it exempted from attachment by virtue, of the provisions of S. 60 of the Civil Procedure Code

(3.) It is necessary now to state a few facts. One Rao Ba. Vithalrao Laxmanrao Thube, hereinafter referred to as Laxmanrao, brought Civil Suit No. 313 of 1943 against Tuljaramarao Narainrao Desai, hereinafter referred to as Tuljaramarao, to recover Rs. 80,000 which had been borrowed by him from the plaintiff. Laxmanrao's suit was decreed on December 20, 1943. Tuljaramarao having died his legal representatives, the present appellants, were brought on the record on September 21, 1944. In April, 1949. Laxmanrao filed an application for the execution of the decree. He sought the attachment, with a view to their subsequent sale, of certain properties including the Wada which is the subject matter of this appeal. The appellants objected to the proposed attachment on various grounds. The executing court on December 17, 1951, issued a warrant of attachment only against the Wada in question. The appellants appealed to the Bombay High Court. Their appeal was heard by Shah, J. who by his order dated September 23, 1953, set aside the order of attachment relying on the decision of Chagla, J. in Second Appeal No. 760 of 1942. He, however, gave no decision on the question whether S. 60 of the Code of Civil Procedure gave protection to the Wada from attachment. Against the decision of Shah, J. there was an appeal under the Letters Patent of the High Court which was heard by a Division Bench. The Division Bench, as already stated, reversed the decision of Shah, J. and restored the order made by the executing court. Subsequently, the High Court gave a certificate that the case was a fit one for appeal to this Court.