UDE BHAN Vs. KAPOOR CHAND

JUDGEMENT

(1.) THE following three questions have been referred to the Full Bench by the order of the Division Bench dated the 14th February, 1964:

(2.) THESE questions arise in three appeals from execution proceedings. . . . . . Execution second Appeal No. 450 of 1963, Execution Second Appeal No. 812 of 1963 and letters Patent Appeal No. 120 of 1963. The facts of the cases giving rise to these appeals have been given in the referring order and it is only necessary to notice them briefly. In E. S. A. No. 450 of 1963, the Judgment-debtor is Chandi Ram against whom Kapur Chand respondent obtained a money decree in execution of which he got attached a chaubara and a room in the house in dispute. This house was before the partition of the country Muslim evacuee property and in 1959 chandi Ram had obtained proprietary rights with regard to the entire house. The portion of the house under attachment was in the tenancy of Mukh Ram, while chandi Ram resided in the rest of the house, Before Chandi Ram obtained proprietary rights in the house, he as well as Mukh Ram were paying rents to the custodian of Evacuee Property for use and occupation of their respective portions and it may be added here that Mukh Ram was carrying on Halwai business in the part of the premises which was with him. On an objection having been made by the legal representatives of Chandi Ram under Section 47 of the Code of Civil procedure to the effect that the attached property was, being a part of their residential house, exempt from attachment under Section 60 (1) (ccc) of the Code the executing Court held that the property was not liable to attachment but in appeal the Additional District Judge, Gurgaon, held that the shop was liable to attachment as it had been let out to Mukh Ram on rent, who was in possession of it. The representatives of the judgment-debtor came in second appeal to this Court while the decree-holders filed cross-objections to the effect that the chaubara should not have been released from attachment.

(3.) IN E. S A. 812 of 1963 the property in dispute consists of a house in Rani-ka-Bagh, Amritsar It consists of 5 rooms out of which 3 had been requisitioned by the state Government for the District Inspector of Schools and the remaining two rooms are being used by the judgment-debtor for his residence. The executing court directed the release of the entire house from attachment but in appeal the senior Subordinate Judge. Amritsar, held that that portion of the house which was under requisition was not exempt from attachment and sole because it could not be said to be in the occupation of the judgment-debtor.