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PETITIONER: KIRAN BALA

       Vs.

RESPONDENT: SURINDER KUMAR

DATE OF JUDGMENT:       02/05/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. THOMAS K.T. (J)

CITATION:  1996 AIR 2094            1996 SCC  (4) 372  JT 1996 (5)   610        1996 SCALE  (4)440

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal arises against an order of limine dismissal of a revision petition passed by the Punjab and Haryana High Court.      The appellant, Kiran Bala, faced more than one suit for recovery of  monies in  the Court  of the  Additional Senior Sub-Judge, Dhuri,  Punjab. Civil Suit No.636 of 6-8-1991 was filed by  the plaintiff  respondent against  her in order to recover Rs.19,125/- inclusive of interest. Apprehending that she may  not alienate  her property the plaintiff-respondent obtained on 24-7-1991 an order of maintenance or status quo. Despite the  said order, the appellant on 29-7-1991 sold her residential  house   in  favour  of  her  daughter  and  her husband’s brother  for a  sum of  Rs.20,000/- mentioning the sale-deed the  necessity of selling it to pay off her debts. This development  got entangled  in the  suit and was put to issue. Specifically  Issue No.3  raised was to the following effect:      "Whether the  sale deed dated 29-3-      1991 executed  by defendant No.1 in      favour of  defendants No.2 and 3 to      defeat and  delay the  claim of the      creditors including plaintiff?      The finding recorded by the court was that the transfer was hit  by the  provisions of Section 53 of the Transfer of Property Act,  being a  fraudulent transfer  as the same had been effected to defeat and delay the claim of the creditor- plaintiff. The  sale thus  having been avoided, was declared null and void by the Trial Court vide order dated 29-7-1994. The suit  otherwise was  decreed in  the sum  of Rs.19,125/- with costs  and future  interest @ 6 per cent per annum from the date of the suit till realization.      For the  money liability  incurred by  the appellant in another suit,  execution petition  was filed  by the decree-

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holder plaintiff-respondent and the house, transfer of which had been declared ’null and void’ in decision in C.S. No.636 of 6-8-1991, was sought to be attached and sold in execution of  the  decree,  To  that,  objection  was  raised  by  the appellant-judgment debtor  that the  said house was her main residential  house   in   her   occupation   and   was   not specifically charged  with the debts sought to be recovered. It was  pleaded that  these facts  entitled  the  appellant- judgment debtor  to protection  of Section 60(1)(ccc) of the Code of  (Civil) Procedure,  as applicable  to the  State of Punjab  by   State  Amendment,   which  does   afford   such protection. Such  claim of  the appellant as to the house in question being  exempt from attachment or sale, was resisted by the  decree-holder on  the specious plea that it had been subjected to  transfer, even  though such  transfer had been held ‘null  and void’  in C.S.  No.636 dated  6-8-1991,  and therefore on  account of  her conduct, the appellant was not entitled to any relief. This defence apparently found favour with the  Executing Court  on attention being invited to the judgment in  the said  Civil Suit.  The import of Section 60 C.P.C.  and   the  relevant  clause  applicable  to  Punjab, granting exemption  from attachment  or sale  of residential house in  occupation of the judgment-debtor was not adverted to at  all. The objection petition was thus dismissed on 28- 3-1995.  The   revision  petition  against  that  order  was dismissed by  the High  Court in  limine on 3-5-1995. Hence, this appeal.      Having set  out the above facts. it is crystal clear to us that  we have  to grant  relief to  the appellant.  It is evident that  she sold  the house  in question ostensibly to pay-off her  debts but  the sale  has been  declared by  the Civil Court, deciding C.S. No.636 dated 6-8-1991, to be null and void. The effect of that decision would be that the said sale becomes  non est  and the  parties  reverted  to  their original position;  meaning thereby that the appellant got a negative declaration  that she continued to be the owner-in- possession of  the house in question. On that premises, what sequally follows,  cannot be  withheld merely  on account of the conduct of the appellant. Since the legal consequence is that she  would be the owner-in-possession of the house, she would definitely  be entitled  to claim  its exemption  from attachment or  sale under  sub-clause (ccc) of Section 60(1) of the  Code of  Civil Procedure, afore-referred to. Had the claim of  the plaintiff  in the  said suit been negatived as regards the  transfer being  with the object of defeating or delaying  her   creditors,  the   house  in  question  would necessarily have been out of the reach of the decree-holder. Merely  because  it  has  now  been  reverted  back  to  the judgment-debtor that  fact, by  itself, would not disentitle the  judgment-debtor   from  raising   the  legal   plea  of exemption. In this view of the matter, we are convinced that the Executing Court was in error in dismissing the objection petition of  the appellant  and so  was-the  High  Court  in dismissing the revision petition in limine.      We therefore allow this appeal, set aside the aforesaid orders and  sustain the  objection of the appellant with the result that the said house cannot be attached or put to sale in execution of the decree.      No costs.