BALKRISHNA BHAWANSA SONAR Vs. CHANGDEO TUKARAM

JUDGEMENT

(1.) IN execution of a decree against the present appellant his house was attached on 28th December 1938 and sold on 28th October 1989. On 4th November 1939, he filed an objection that his house was not liable to attachment or sale by reason of proviso (c) to Section 60(1), Civil P.C., as being a house occupied by an agriculturist. The lower Courts, following the decision in Sobha v. Mt. Chhagan Bai held that such an application by a judgment, debtor, must be made before the sale has taken place. Until comparatively recently, the general view undoubtedly was that such an objection to succeed must be made before the sale. Recently however a different view has been taken in Pokhar Singh v. Tula Ram and Ram Chandar v. Sarupa A.I.R. 1939 Lah. 113 In the former case, it was held that an objection that property is not liable to attachment or sale under Section 60, Civil P.C., can be made either after attachment or after sale and that there is no period of limitation, provided the Court is not functus officio. Much the same view was taken in Ram Chandar v. Sarupa A.I.R. 1939 Lah. 113 where there is a rule in force similar to the rule in this province in the shape of a proviso to Order 21, Rule 90: Provided also that no such application for setting aside a sale shall be entertained upon any ground which could have been but was not put forward by the applicant before the commencement of the sale.

(2.) THAT proviso appears to apply only to applications under Order 21, Rule 90 and I think it must be accepted that an objection to a sale on the ground that the property was not liable to attachment or sale falls within 8. 47, Civil P.C. Though a contrary view was taken by Mahmood J. in Ramchhaibar Misr v. Bechu Bhagat 7 All. 641 the point has generally been regarded as beyond dispute, at least under the present Civil Procedure Code. It may be noted that Staples Sobha v. Mt. Chhagan Bai did not rely on the proviso to Order 21, Rule 90 but based his decision on Jita Singh v. Ganpat Rai A.I.R. 1930 Lah. 106 which was dissented from in Umed v. Jas Ram 34 Cal. 199 and Dwarkanath Pal v. Tarini Sankar Ray 29 All. 612