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PETITIONER: STATE OF PUNJAB AND ANOTHER

       Vs.

RESPONDENT: DINA NATH

DATE OF JUDGMENT21/11/1983

BENCH: MADON, D.P. BENCH: MADON, D.P. SEN, A.P. (J)

CITATION:  1984 AIR  352            1984 SCR  (1) 844  1984 SCC  (1) 137        1983 SCALE  (2)789

ACT:      Code of Civil Procedure 1908 Ss. 2 (2) and 60(1) (ccc).      Residential house  exempt from  attachment and  sale in execution of  court decree-Collector  whether  competent  to order attachment  and  sale of residential house  under Land Revenue Recovery Act.      Punjab Land  Revenue Act 1887. Liquor vendor-Failure to pay licence  fee-Recovery initiated  under  -  Land  Revenue Recovery Act-Collector  if could   order attachment and sale of residential house.

HEADNOTE:      The respondent  a liquor  vending licensee defaulted to pay license  fee inspite  of  repeated  reminders.  Recovery proceedings under  the Punjab  Land Revenue  Act, 1857  were initiated against  him. The  Collector issued a proclamation prohibiting the  transfer or  creation of  a charge  by  the respondent on  his half  share  in  an  immovable  property, consisting of  a plot  of land  and a  building thereon, and notified the property for auction.      The respondent,  filed a  suit for  permanent injuction restraining  the  appellant-State  and  the  collector  from auctioning his  half share, on the ground  that the building was being used by him tor his residence, and he had no other residential house,  and that therefore the half share of the residential house  was exempt  from attachment  under clause (ccc) of the proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908. The trial court dismissed the suit and  this order was confirmed in appeal by the District judge.      Allowing the respondent’s second appeal, the High Court upheld his  contention. and  issued a  permanent  injunction only with regard to that portion of the building in which he was residing;      Allowing, the appeal to this Court, ^      HELD:  (1)  The  High  Court  was  wrong  both  in  its criticism of  the subordinate  courts and  in  allowing  the respondent’s second appeal. [847 E] 845      2. Section  60  of  the  Code  has  no  application  to attachment  and  sale  in  any  proceedings  other  than  in

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execution of  a decree  of a civil court. It applies only to execution of  a decree  of civil  court.  It  declares  what properties are  liable to  be attached and sold in execution of such  a decree  and the  proviso to  sub-section  (1)  of section 60  sets out the properties which are not’ liable to such ’ attachment or sale. The expression such attachment or sale" in  the proviso  refers to  the  attachment  and  sale mentioned in  sub-section (I)  of section  60,  that  is  to attachment and  sale in  execution of  a decree  of a  civil court. The  section does not apply to an attachment and sale under any  other statute  unless made  expressly  applicable thereto. [847 H; 848 A-B]      In the instant case the attachment and the auction sale were not  in execution  of any  decree of  a civil court but were in  pursuance of an order made by an officer authorised adopt proceedings  under the  Punjab. Land Revenue Act, 1887 for recovery  of revenue  due to  the  state.  There  is  no provision in  this Act which makes the provisions of section 60 of  the  Code  applicable  to  attachment  and  sale  for recovery of revenue under the said Act. [848 D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 7494 of 1983      Appeal by  Special leave  from the  Judgment and  order dated the  6th May,  1981 of the Punjab & Haryana High Court in R S A. No. 2944 of 1980.      S.K. Bagga for the Appellants.      The Judgment of the Court was delivered by      MADON,  J.  This  appeal  by  special  leave  from  the Judgment and ’ and decree in Second Appeal of the Punjab and Haryana  High   Court  involves  the  determination  of  the question whether section 60  of the Code of Civil Procedure, 1908, applies to an attachments and sale in revenue recovery proceedings adopted  under the Punjab Land Revenue Act, 1887 (hereinafter referred to as "the said Act").      The facts  which have  given rise  to this question are that Dina  Nath the  Respondent along  with one Gora Lal and Sat Pal,  had been  granted a liquor vending licence for the year 1968-69  ’ by the Excise and Taxation Department of the State of  Punjab, Patiala Division, in respect of which they had to  pay a  sum of  Rs.  1,38,000  as  licence  fee.  The licences paid  a sum  of Rs.  86,450,  leaving  the  balance unpaid in  spite of repeated reminders. Ultimately, recovery proceedings  under   the  said   Act  were  started  by  the department  and   the   Collector.   Excise   and   Taxation Department, Patiala, by his order 846 dated January  16, 1976,  issued a  proclamation prohibiting the transfer  or creation  of a  charge by the Respondent of his half share in an immovable property consisting of a plot of land  bearing Khewat No. 374, Khatuni NO. 511. Khasra No. 39710-19,  situate   in  village  Ghagga,  with  a  building constructed thereon.  The auction  in respect  of  the  said share of  the Respondent  in the  said property was notified for June  14,1977. Just  a day  prior to  the holding of the said auction  sale the  Respondent filed a suit in the Court of Sub-Judge, 1st Class, Patiala-C, being Suit No. 472/13-6- 77, against the State of Punjab and the Collector-cum-Deputy Excise and  Taxation Commissioner,  Patiala Division,  for a permanent  injunction   restraining  the   State   and   the Collector-cum-Deputy Excise  and Taxation  Commissioner from auctioning his  said  half  share.  The  contention  of  the

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Respondent was  that a  part of the building standing on the said plot  of land  was being  used by him for his residence and he  had no  other residential  house and, therefore, his said half  share was  exempt from  attachment  under  clause (ccc) of the proviso to sub-section (l) of section 60 of the Code of  Civil Procedure,  1908 (hereinafter  referred to as the ’Code’),  inserted in  the said  section 60  by a  State amendment. The  proviso  to  sub-section  (I)  of  the  said section 60  sets out  the properties which are not liable to attachment or  sale, and  the said  clause (ccc) provides as follows:           "(ccc)  one   main  residential  house  and  other      buildings attached  to it  (with the  material and  the      sites thereof  and  the  land  immediately  appurtenant      thereto and necessary for their enjoyment) belonging to      a  judgment-debtor  other  than  an  agriculturist  and      occupied by him;           Provided that  the  protection  afforded  by  this      clause shall  not extend  to any  property specifically      charged with the debt sought to be recovered."      It is  pertinent to  note that  in the  said  suit  the Respondent did not challenge his liability to pay the amount claimed from  him. Several  contentions were  raised in  the written statement  filed by  the Appellants,  who  were  the defendants to  the said  suit, including the contention that the property  attached and  notified for sale was not exempt from attachment  and sale. The Appellants also contested the jurisdiction of the court. The Trial Court upheld both these contentions  and   dismissed  the   suit  with   costs.  The Respondent then filed 847 an appeal to the District Judge, Patiala, being Civil Appeal No. 554  of 5.9.79.  The Additional District Judge, Patiala, who heard  the said   appeal,  dismissed it  with costs. The Respondent thereupon  approached the Punjab and Haryana High Court in  second appeal, being Regular Second Appeal No. 294 1 of  1980. The learned, Single t - Judge of the High Court, who  heard  the  said  appeal,  after  observing  that  "the conclusion arrived  at by  the trial court on facts was per- verse whereas  the appellate  court applied  totally a wrong law in deciding the appeal", allowed the said second appeal, holding ’that  the portion  of the  said building  used  for residence was  exempt from  attachment and sale under clause (ccc) of  the proviso  to the  said section  60, while  that portion in  which the liquor shop was situated was liable to be attached,  and accordingly  issued a permanent injunction with regard  to the  portion in  which  the  Respondent  was residing and dismissed the suit so far ’as it related to the portion of  the  building  in  which  the  liquor  shop  was situated. The  parties were  further directed  tn bear their own costs.  The question  of jurisdiction of the civil court to entertain  and try  the suit filed by the Respondent does not appear  to have been raised before the High Court. It is against this judgment and decree of the High Court that this appeal is directed.      In our  opinion, the  learned Single  Judge of the High Court was  wrong both  in his  criticism of  the subordinate courts and  in allowing the Respondent’s said Second Appeal. Section 60  of the  Code specifies  the properties which are liable to  attachment and sale in execution of a decree. The opening words  of sub-section  (I) of  section 60  are  "The following property  is liable  to  attachment  and  sale  in execution of  a decree". Clause (2) of section 2 of the Code ’ defines  the term "decree". The relevant provisions of the said definition are as follows:

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         "(2) "decree"  means the  formal expression  of an      adjudication  which,   so  far  as  regards  the  Court      expressing it,  conclusively determines  the rights  of      the parties  with ’ regard to all or any of the matters      in  controversy   in  the’   suit  and  may  be  either      preliminary of final...."      Section 60  of the  Code thus applies only to execution of the  decrees of civil courts and declares what properties are liable  to be  attached and  sold in execution of such a decree and the proviso to sub-section (1) of section 60 sets out the  properties which  are not liable to such attachment or sale, The opening words of the said 848 proviso are  "Provided that  the following particulars shall not be  liable to  such attachment  or, sale, namely".:- The expression "such  attachment or  sale" in  the said  proviso refers to  the attachment  and sale mentioned in sub section (1) of  section 60,  that is,  to  attachment  and  sale  in execution of  a a  decree. On  a plain  reading of  the said section 60,  it is  clear that section has no application to attachment  and  sale  in  any  proceedings  other  than  in execution of  a decree  of a civil court., The provisions of section 60  of the  Code do  not apply  to an attachment and sale under  any of  her statute  made  expressly  applicable thereto. So  far as the said Act is concerned, it contains a complete code  providing for  the modes  and  machinery  for recovery of arrears of revenue. The attachment in a question was levied under the provisions of the said Act and the sale which was notified was also under the provisions of the said Act. The attachment levied on, and the auction sale notified in respect  of, the  Respondent’s half  share  in  the  said property were  not in  execution of  any decree  of a  civil court but  were in pursuance of the order made by an officer authorized to  adopt proceedings  under  the  said  Act  for recovery of  revenue due to the State. There is no provision in the  said Act which makes the provisions of section 60 of the Code  applicable to  attachment and sale for recovery of revenue under the said Act. The properties, if my, which are exempt  from   attachment  and   sale  in  revenue  recovery proceedings under the said Act would be only such properties as are so exempted by the said Act. There is no provision in the said  Act corresponding  to cl.  (ccc) of the proviso to sub-section (1)  of section  60 of,  the Code,  and the half share of the Respondent in the said property was, therefore, not exempt  from attachment  and sale  in  revenue  recovery proceedings adopted  under the  said Act.  Consequently, the Respondents suit was liable to be y dismissed on this ground alone.      For the reasons set out above, we allow this appeal and set aside  the Judgment and Decree of the Punjab and Haryana High Court  and dismiss  with costs  the said Regular Second Appeal No.  2944 of 1980 filed by the Respondent 2nd restore the decree passed by the Addition District Judge, Patiala-C. in Civil  Appeal No.  554 of 5.9.79 and the decree passed by the  Sub-Judge,   1st  Class,   Patiala-C,   in   Suit   No. 472/13.6.7?.      The Respondent  will pay to the Appellants the costs of this appeal. N.V.K.                                       Appeal allowed, 849