MAHENDER KUMAR Vs. MANGAL SINGH

JUDGEMENT

(1.) THE revision petition is directed against the proceedings for attachment and sale of the property, which is admittedly residential house of the judgment debtor. The defence by the judgment debtor is that in terms of Section 60(1)(ccc) of the Code of Civil Procedure by the Punjab Amendment, one main residential house and other buildings attached to it belonging to a judgment debtor other than an agriculturist and occupied by him, shall be protected from attachment. The contention is that since the property sought to be attached is a residential house, protection of the State amendment avails to a judgment debtor. This objection was accepted and the attachment sought by the decree holder was denied. It is against this order of the Executing Court that the revision has been filed. The decree, which is sought to be executed was the compromise decree in a specific performance suit. The suit for specific performance at the instance of the decree holder was in relation to the residential house agreed to be sold by the defendant to the plaintiff. The parties entered into a compromise on 07.01.2004 allowing for the defendant to pay Rs. 66,000/ - to the plaintiff in instalment of Rs. 2000/ - per month and the compromise specifically recites, "till then the defendant will not sale, mortgage the house in question to anybody and the charge shall remain created on the house and if the defendant failed to pay the instalment in time then the plaintiff has right to file the execution application before the Court for recovery of the balance amount......" Towards the end the document also reads that the plaintiff will have also the right to recover the balance amount by way of auction of the house in question. When there is a reference specifically made in the compromise that a charge was being created on the property for the liability, which the defendant had undertaken then it is to be seen whether it falls within the proviso mentioned under Section 61(1)(ccc). The proviso would require to be reproduced which reads as follows: -

(2.) A faint argument is made on behalf of the judgment debtor that the compromise is required to be registered and it was not so registered. Section 17(2)(vi) of the Registration Act, 1908 reads as follows: -

(3.) IN this case when the decree holder was enforcing a charge all that was necessary was to seek for a final decree and for the sale of the property. It was not even necessary that fresh proceedings for attachment was to be made. It was a surplus -age and if the party was executing to the same, the judgment debtor does not obtain a right to contend that the property could not be sold.