SOBHA KHUSHAL Vs. CHHAGANBAI

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The question to be decided in this appeal and in Second Appeal No. 309 of 1932 is the same, and the appellant judgment-debtor is also the same in both appeals. The two appeals have been heard together and this judgment will govern both. The respondents had obtained decrees' against the appellant, and in execution of these decrees the property, which consisted of a house belonging to the appellant, was put to sale. After the sale was held the appellant made an application for release of the house on the ground that it was not liable to attachment and sale in execution under Section 60(c), Civil P.C. The executing Court however found that such an application was not maintainable after the sale had been held and therefore dismissed the application. Appeals against the order were also dismissed by the District Judge, and the judgment-debtor has now preferred these second appeals.

(2.) I am of opinion that the view taken by the lower Courts is correct and that such an application by a judgment-debtor cannot be heard after the sale has been held and that it must be made before the sale. I would also point out that in my opinion the application is barred by time under Article 166, Lim. Act, because it was made more then one month after the sale, the sale being held on 16th June 1931 and the application not being presented until 17th July 1931. In this connexion I would refer to the words "including any such application by a judgment, debtor" that have been added to Article 166,, Lim. Amendment Act (1 of 1927). It must now be held that applications such as the present under Section 47, Civil P.C., by a judgment-debtor are now governed by this article. In this connection I would' refer to Ramdhuri Chowdhuri v. Deonandan Prasad Singh AIR 1922 Pat 50 and MaPwa v. Mahomed Tambi AIR 1924 Rang 124 as well as to Haripada Haldar v. Barada Prasad Roy AIR 1928 Cal 861. For the view that an application that property is not liable to attachment and sale under Section 60 cannot be made after the sale has been held. I would refer in addition to the cases cited by the lower appellate Court, to Jita Singh v. Ganpat Rai, AIR 1930 Lah 106.

(3.) I would hold therefore that a judgment-debtor who is aware of the proclamation of sale, and that his property has been attached and is to be sold, and who does not make any objection prior to the sale, cannot, after the sale, be allowed to raise an objection under Section 60, Civil P.C., that the property proclaimed to be sold is not liable to attachment and sale under that section. I would also hold that an objection or application by a judgment-debtor that his property is not liable to attachment and sale under Section 60, Civil P.C., is an objection under Section 47 of the Code and is governed by Article 166, Lim. Act. The appeals are therefore dismissed. Costs of the appeals will be borne by the appellant. Other costs as ordered by the lower appellate Court. I fix pleader's fees at Rs. 15 in each appeal.