SWARAN SINGH Vs. FINANCIAL COMMR TAXATION CHANDIGARH

JUDGEMENT

(1.) Surinder Mohan Singh and Sat Parkash respondents Nos. 5 and 6 obtained a decree from the Assistant Collector, Nawanshahr, against Swaran Singh petitioner for recovery of Rs.4860/- and costs, being the rent of the agricultural land payable by him. In execution of the decree, respondents Nos.5 and 6 got his house attached and sold which is described in the plan Annexure-P.1. He filed objections against attachment of the residential house before its sale on the ground that the same was exempt from attachment, being his self-occupied residential house. These objections were, however, dismissed by the Assistant Collector, 1st Grade, Nawanshahr, respondent No.4 vide his order dated 12-8-1976 on the ground that the same were barred by the principle of constructive res judicata and that he had two houses out of which one had been attached. His appeal to the Collector, Jalandhar, was dismissed vide order dated 19-8-1977 Annexure P.3 on the ground that it was barred by time and there was no justification for condoning the delay. On a revision petition being filed by him, the Commissioner, Jalandhar Division, vide his order dated 8-3-1978 (P.4) reached at the conclusion that the delay ought to have been condoned by the Collector and the appeal should have been heard on merits. Consequently, the case was forwarded to the Financial Commissioner, Punjab, recommending that the delay should be condoned and the case be remanded to the Collector, Jalandhar, for disposing of the same on merits. The Financial Commissioner (Taxation) Punjab, vide order dated 22-9-1978 Annexure-P.5 did not agree with the recommendations made vide order Annexure-P.4 and instead upheld the order of the Assistant Collector 1st Grade and that of the Collector. Respondent No.1 observed that the petitioner had failed to satisfy the decree and his one house had rightly been attached and that the decree-holders had quite sportingly prayed that either of the two houses of the judgment-debtor (the petitioner) be put to auction to meet the liability. Swaran Singh petitioner thereon filed the present writ petition in this Court praying for the issuance of a writ of certiorari to quash the orders Annexures P.2, P.3 and P.5. Written statement has been filed on behalf of respondents Nos.5 and 6, who are the contesting respondents.

(2.) I have heard the learned counsel for the petitioner and respondents Nos.5 and 6. The petitioner has categorically asserted that he had only one residential house in village Banga, tehsil Nawanshahr, which was in his occupation. There was no material before the Assistant Collector or the Financial Commissioner to conclude that he had two residential houses. The site plan of house No.2551 owned by him and in his occupation which was attached in execution is Annexure P.1. The learned counsel for the petitioner, therefore, contends that in view of the provisions of S.60(1)(ccc) of the Code of Civil Procedure, 1908 (hereinafter called 'the Code'), as applicable to the State of Punjab, the said house being the main and the only residential house of the petitioner was not liable to attachment or sale in execution of the decree passed by the Assistant Collector 1st Grade secured by respondents Nos.5 and 6. He further proceeds to contend that respondent No.4 was wrong in his conclusion that because of an earlier objection application filed by him, which had been dismissed, the objection that the residential house was not liable to attachment or sale was barred by the principle of constructive res judicata.

(3.) The learned counsel for respondents Nos.5 and 6 could not dispute the fact that house No.2551 at Banga as described in site plan Annexure-P.1 was the only residential house of the petitioner and he did not own any other house. He, however, put forward two-fold defence to the contentions of the petitioner. Firstly, he submitted that since the decree under execution had been passed by the Assistant Collector by virtue of the powers conferred on him under S.77 of the Punjab Tenancy Act, 1887 (hereinafter called 'the Tenancy Act'), it was not a decree of a civil Court and as such the provisions of S.60(1)(ccc) of the Code were not applicable. The decree was being executed by the Revenue authorities and the substantive provisions of the Code and the procedure for execution laid down by the Code has no application. In support of this submission, he placed reliance on State of Punjab v. Dina Nath, (1984) 1 SCC 137. His second submission is that the petitioner had earlier made an application on 11-6-1976 raising certain objections against the execution of the decree after the house had been attached on 28-5-1976, which was dismissed by respondent No. 4 on 5-7-1976. At that time it was open to him to raise an objection that his residential house was not liable to attachment but no such objection was raised. The second objection application filed on 13-7-1976, which was culminated into the impugned orders, was therefore, barred by the principle of constructive res judicata.