SWARAN SINGH Vs. FINANCIAL COMMISSIONER

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. 4,860/- 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, Ist Grade, Nawanshahr, respondent No. 4, - vide his order dated 19th August, 1977 Annexure P.3 on the ground that it was barred by time and there was no justification for condoing the delay. On a revision petition being filed by him the Commissioner, Jalandhar Division, - vide his order dated 8th March, 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, he 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 22nd September, 1978 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 certioraris to quash the orders Annexure P.2, P.3 and P.5. Written statement has been filed on behalf of respondents Nos. 5 and 6, who are he contesting respondents.

(2.) I have heard the learned counsel for the petitioner and respondent Nos. 5 and 6. The petitioner has categorically asserted that he had only one residential hours in village Banga tehsil nawanshahr, which was in his occupation. There was no material before he Assistant Collector or the Financial Commissioner to conclude that he had two residential houses. The site plan of the 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 section 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 houses 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 No. 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 resejudicata.

(3.) The learned counsel for the respondent Nos. 5 and 6 could not dispute he 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 course. He, however, put forward two-fold defence to the contentions of the petitioner. Firstly, he submitted that since the decree under execition had been passed by the Assistant Collector by virtue of the powers conferred on him under section 77 of the Punjab Tenancy Act, 1887 (hereinafter called 'the Tenanct Act'), it was not a decree of a civil Court and as such the provisions of section 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 and another V. Dina Nath, 1984 1 SCC 137. His second submission is that the petitioner had earlier made an application on 11th June, 1976, raising certain objections against the execution of the decree after the house had been attached on 28th May, 1976, which was dismissed by respondent No.4 on 5th July, 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 13th July, 1976, which was culminated into the impugned orders, was therefore, barred by the principle of constructiveres judicata.