BHAGWAN DAS PRIBHDAS Vs. SANTOKH SINGH SARAN SINGH

JUDGEMENT

(1.) A suit for recovery of certain amount of money having been instituted by the decree-holders, Bhagwan Das and others, against the judgment-debtors, Santokh singh and others, in the Court of a Civil Judge at Nasik (Maharashtra), the learned trial Judge sent a warrant of attachment of the house of the judgment-debtors to attach the same before judgment. The warrant was addressed to the Bailiff in the civil Courts at Ludhiana. It is dated February 6, 1956. There is on it then the order of the Senior Subordinate Judge of Ludhiana, made on February 18, 1956, directing the Civil Nazir to comply with it. The warrant of attachment was executed and attach ment before judgment of the house of the judgment-debtors was carried out on February 27 1956.

(2.) ON February 12, 1957, the decree holders obtained a decree for Rs. 81,626/2/6, with proportionate costs, against the iudgment-debtors. The decree-holders obtained a transfer certificate for execution of the decree in the Civil Court at Ludhiana and actually made the execution application at Ludhiana on April 19, 1960. On that the Judgment-debtors made an objection application to the Court executing the decree that the house had in fact not been attached according to law and that, in any case, even if it was duly attached according to law-it being their only residential house, it was exempt from attachment and sale in execution of the money decree against them in view of proviso (ccc) to Section 60 (1) of the Code of Civil Procedure, as inserted by Punjab Relief of Indebtedness Act, 1934 (Punjab act 7 of 1934) (as amended by Punjab Acts 12 of 1940. 6 of 1942 and 44 of 1960 ).

(3.) THE executing Court settled a number of issues in the objection application of the judgment-debtors and ultimately finding in their favour released the house from attachment. It found that the attachment was invalid and without jurisdiction and also that the house was exempt from attachment and sale in execution of the decree-holders' decree as claimed by the judgment-debtors. Against the order of the executing Court there was an appeal to this Court and a learned Single Judge in his judgment and order of May 15, 1963. has held, on the matters that alone were the subject-matter of controversy before him, (a) that the attach ment before judgment in this case was not without jurisdiction though it was attended by an irregularity inasmuch as contrary to Sub-section (1) of Section 136 of the code of Civil Procedure an order of attachment by the Nasik Court was not sent to the District Court of Ludhiana but to a Bailiff at Ludhiana, and it was not an invalid and illegal attachment, and (b) that for the matter of an objection application to claim exemption from attachment and sale of property in execution of a money decree, where there has already been an attachment before judgment of a property of the judgment-debtor, such attachment for the purposes of such execution dates from the date of the execution application and not from the original date of attachment before judgment. In this approach the learned Judge accepted the appeal of the decree-holders and remanded the case to the trial court tor a fresh decision after giving opportunity to the parties to lead evidence on the question whether the property in dispute was or was not exempt from attachment and sale as claimed by the judgment-debtors. One appeal (L. P. A. No. 222 of 1963) has been filed against the judgment and order of the learned Single judge by the decree-holders, and another appeal (L. P. A. No. 259 of 1963) has been filed by the judgment-debtors.