STATE OF PUNJAB Vs. DINA NATH

JUDGEMENT

(1.) This appeal by special leave from the Judgment 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 attachment and sale in revenue recovery proceedings adopted under the Punjab Land Revenue Act, 1887 (hereinafter referred to as "the said Act").

(2.) 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 licencees 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 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. 397/0-19, situated in village Ghagga, with a building constructed thereon. The auction in respect of the said share of 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 (1) of Sec. 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 the said Section 60 sets out the properties which are not liable to attachment or sale, and the said clause (ccc) provides as follows:

(3.) 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 an appeal to the District Judge, Patiala, being Civil Appeal No. 554 of 5-9-1979. 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 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 at by the trial Court on facts was perverse 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.