CHAMAN LAL Vs. MOHAN LAL

JUDGEMENT

(1.) THIS second appeal is directed against the order of the Additional District Judge, Amritsar, dated 1st of June, 1968, dismissing the appeal of the Appellant judgment -debtor and affirming the order of the executing Court dismissing his objections relating to the liability of the property in question to sale. The facts, as are necessary for the decision of this appeal and are not much in controversy, may be stated in a narrow compass.

(2.) MOHAN Lal, Respondent obtained a money decree in a sum of Rs. 1,360 against the judgment -debtor - -Appellant on 27th of August, 1963, and in execution thereof got one -sixth share of some land belonging to the judgment -debtor attached. The attached land was then sold and the sale confirmed by the executing Court on 10th of August, 1964. The Appellant filed objections, purporting to be under Order 21 Rule 90 of the Code of Civil Procedure, but the same were dismissed on 25th of February, 1965. He then again preferred another objection petition under Section 47 of the Code of Civil Procedure, read with Section 10(3) of the Punjab Debtors' Protection Act, 1936 (Punjab Act 2 of 1936), hereinafter called the Act. and this petition was also dismissed on 11th of March, 1966. It was held that the second objection petition was not maintainable and was barred by time. It is not disputed that the second application was made almost seven months after the confirmation of the sale, An appeal was taken to the Additional District Judge who, as already observed, concurred with the findings of the trial Court and upheld its order. Hence the present second appeal.

(3.) MR . Tirath Singh Munjral, learned Counsel for the Appellant -judgment -debtor, has strenuously urged before me that the sale being contrary to the provisions of Section 10(3) of the Act was void and, therefore, no bar of limitation applied. The argument is that when the sale was conducted it was not even necessary for the judgment -debtor to file objections to have the sale set aside and all that was sought for was a mere declaration. He has invited my attention to a Division Bench judgment of this Court in Vishnu Datt v. Jai Narain : 1986 C.L.J. 921, In that case the learned Judges were dealing with the provisions of Section 60(l)(ccc) and (6) of the Code of Civil Procedure. It is enjoined by Sub -section (6) of the said Section 60 that "No order for attachment shall be made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale." By virtue of Sub -section (3) and Clause (ccc) of Sub -section (1) of Section 60 one main residential house and other buildings attached thereto belonging to a judgment -debtor, other than an agriculturist, and occupied by him are exempt from attachment and sale in execution of a decree. An application by the judgment -debtor, raising an objection about the attachment and sale of the property but not specifically urging that the house sought to be got released from attachment was his only residential house and thus exempt from attachment and sale, was dismissed. The order of the Court was, of course, made in the absence of the judgment -debtor who, after having filed the objections, absented himself. Sale of the attached property was then effected and the judgment -debtor then filed another application under Section 47 read with Section 60 of the Code of Civil Procedure, making this time a clear allegation that the property attached and sold was his sole residential house and exempt from attachment and sale under Section 60. The decree -holder resisted the application on the ground that the second application was barred by the rule of res judicata. The learned Judges constituting the Division Bench observed on reading of Section 60(l)(ccc) that the rule of res judicata could not deprive the judgment -debtor of his residential house. It was held by the Bench that the provisions of Sub -section (6) of Section 60 cast a duty on the Court not to order an attachment or sale of any property unless it comes to a finding that the same is not exempt from such attachment or sale. It was held that since in the circumstances of that case attachment had not been made after compliance with the provisions of Section 60(1)(ccc) read with Section 60(6) of the Code of Civil Procedure, there was no valid attachment in the eyes of law and any sale effected in pursuance of such an attachment would also not be valid Mr. Munjral submits that the language of Clause (ccc) of Sub -section (1) and Sub -section (6) of Section 60 of the Code of Civil Procedure is almost similar to that of Section 10(3) of the Act and it should, therefore, be similarly held that the sale in the circumstances of the present case was void. I am afraid there is no substance in this contention. No doubt a judgment -debtor's land not exceeding 50 per cent, is not liable to attachment or sale in execution of a decree for the payment of money if the judgment -debtor requires the same for his maintenance, but it has to be ascertained as to what are his sources of income. It may be that his sources of income are such which in the opinion of the Court do not justify exemption even of 50 per cent of that land. It is a matter which has to be specifically raised and decided. The judgment -debtor did not in his application raise any such plea and the application was dismissed on 25th of February, 1965. After giving my careful thought to the matter, I am of the opinion that the language of Section 10(3) of the Act is in no way similar to that of Section 60(l)(ccc) of the Code of Civil Procedure and there is no duty cast on the Court to find out the sources of income of the objector and not to direct attachment or sale of his property even when the objector raises no such plea. The sale in such a situation, in the absence of a plea and a finding, cannot by any stretch of imagination be held to be invalid. It will be putting a premium on the neglect or wilful default of the judgment -debtor to permit him to raise the same objection over again. To allow him to raise new objections in order to challenge the validity of the sale, when he did not choose to do so earlier when he could have so done, is hit by the rule of res judicata and the second application must be held to be barred, both by the said rule and also by the rule of limitation, The ratio in Gauri's case : A.I.R. 1942 Lah. 153, decided by the Lahore High Court is fully applicable to the circumstances of the present case. It was held there that an application to set aside a sale, even though not under Order 21, Rule 90 of the Code of Civil Procedure but under Section 47 read with Section 60 of the Code, will also be governed by Article 166 of the Limitation Act, 1908, which is equivalent to Article 127 of the Limitation Act, 1963, whereunder a period of thirty days is prescribed to have the sale set aside, Article 127 is in the following terms: