Decided on May 26,1950

Santu And Anr. Appellant
Sohan Lal and Ors. Respondents


Teja Singh, C.J. - (1.) THIS revision petition arises out of execution proceedings. The facts briefly stated are as follows:
(2.) ON 29 -9 -1996 one Nathu Lal obtained a money decree for Rs. 1,000 and costs against the four sons of Mangal deceased, realisable out of the assets of Mangal in the hands of his sons and also against Biru, one of the four sons, personally. On 9 -11 -1997 Nathu Lal sued cut the execution of the decree and had a house attached on 2 -3 -1998. On 6 -12 -2000 Santu and Bantu, two of Mangal's sons, put in objections to the attachment and sale of the house. They alleged that they being agriculturists and the house being used by them for residential purposes the same could not be attached and sold in execution of money decree against their father. They further alleged that the house being their only residential house it was exempt from attachment and sale. The following two issues were framed by the execution Court: 1. Whether Santu judgment -debtor was an agriculturist? and 2. Whether the attached property was out of the assets of Mangal deceased? The reason why no mention of Bantu objector was made in the issue is not clear from the record. It may be that because he was blind and minor and the objections were raised by Bantu as his guardian his name was left out inadvertently. This, however, is not material because both sides admitted that the objections were on behalf of Bantu also and if they had succeeded the benefit of them should have gone to him as well as to Santu. Both the issues were found against the objectors and their objection petition was dismissed. On appeal the District Judge set aside the order of the executing Court and remanded the case for re -decision after adding Anr. issue, viz., whether the judgment debtors were governed by customary personal law. After the remand the case came up before Anr. Sub -Judge who, instead of deciding the case as directed by the District Judge, submitted a report to the District Judge that the objectors had not been able to prove that custom applied to them. The District Judge sent back the case to executing Court pointing out that according to the order of remand, it was its duty to decide the case de novo and no question of submitting a report arose. By that time the previous Sub -Judge had also been transferred and his place was taken by S. Mohindar Singh Joshi. The latter found all the issues against the objectors and disallowed their objections. The objectors again went up in appeal to the District Judge but this time they failed.
(3.) THE petition is directed against the appellate order of the District Judge. It has been referred to the Full Bench on the ground that it involves important and difficult questions. I may, however, point out that it being only a petition in revision the score of it is limited. The District Judge has held that the objectors were not able to prove that they were agriculturists, and accordingly they could not avail of the exemption mentioned in Clause (c) of Section 60, Code of Civil Procedure. This is a finding based on evidence and no question of jurisdiction being involved it cannot be disturbed in revision. The Petitioner's counsel argued that the onus of issue No. 1 was wrongly placed upon his clients and this had materially prejudiced them. There is nothing on record to show that at the time the Court framed the issues and placed the onus of the first issue upon the objectors, any objection was taken on their behalf. I am, therefore of opinion that it is not open to them to raise this point at this stage. Moreover, since both parties produced all the evidence that was available to them and the entire evidence was taken into consideration by the District Judge the question of onus becomes immaterial and even if we be inclined to think that the onus was wrongly placed, the finding of the District Judge cannot be set aside merely for this reason. Apart from this I am not convinced that there was any error on the part of the trial Sub -Judge in framing issue No. 1, in the form in which he did or in requiring the objectors to prove that they were agriculturists. It was conceded by counsel for both sides that at the time of the decree as well as at the time the house in dispute was attached, exemption from attachment of the house on the ground that they were agriculturists could only be claimed under Clause (c) of Section 60 which lays down that houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him are not liable to attachment and sale in execution of a decree. The Petitioner's counsel argued that since the section was later on amended by the Patiala Relief of Indebtedness Act (v [5] of 1999) and the scope of exemption from attachment of a house belonging to and occupied by an agriculturist was made wider, and the act had come into force before the objections were filed, the objectors were entitled to take advantage of the amendment. That the Act was in force at the time the Petitioners put in their objections cannot be denied, because it came into force on 1 -4 -2000 and the objection petition, as mentioned above, was instituted on 6 -12 -2000. Section 34 of the Act laid down that Section 60, Code of Civil Procedure would stand amended as below: (i) In Clause (c), for the words 'occupied by him,' the following words shall be deemed to be substituted, namely: not proved by the decree -holder to have been let out on rent or lent to persons other than his father, mother, wife, sort, daughter, daughter -in -law, brother, sister or other dependents or left vacant for a period of a year or more'; (ii) After Clause (c), the following clauses shall be deemed to be inserted, namely: (cc) Milch animals, whether in milk or in calf, kids, animals used for the purposes of transport or draught carts, and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure; (ccc) one main residential house and other building attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to judgment -debtor other than an agriculturist and occupied by him; After Sub -section (2) the following sub -sections shall be deemed to be inserted, namely: (3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void; (4) For the purposes of this section the word 'agriculturist' shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land as defined in the Patiala Alienation of Land Act, 1972, (5) Every member of a tribe notified an agricultural under the Patiala Alienation of Land Act, 1972, and every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved; (6) 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. As regards the allocation of onus the Petitioners' counsel mainly relied upon Sub -sections (4) and (6) added to Section 60, by the amending section of the Patiala Relief of Indebtedness Act. He argued that the amendment related only to the law of procedure and accordingly it applied even to the pending execution applications and objection petitions. He also drew our attention to the words of the proviso to Section 60 which enumerate the different kinds of properties that are exempt from attachment and sale and argued that since the relevant words of the proviso are "attachment or sale", even if it be held that it was not open to the objectors to question the attachment on the ground that it had been effected before the amending Act came into force, there was nothing to prevent them from objecting to the sale which had yet to take place. His argument precisely was that in view of the word "or" used in the proviso an objection to a sale in execution of a decree was maintainable even if the objection to attachment did not lie. On the other hand, it was contended by the Respondents' counsel that the decree -holders' right to attach the property of his judgment -debtor and to have it sold in execution of his decree accrued on the day he obtained the decree and since Section 34, Patiala Relief of Indebtedness Act, was not given any retrospective effect, it could not take away that right of the decree -holder and could not affect the present proceedings. In the alternative he argued that as soon as the house in question was attached a right accrued to the decree -holder to have it brought to sale and that right could not be taken away by a law which was enacted later, unless it was laid down therein in so many words that it applied to pending proceedings. He denied that the amendments introduced into Section 60, Code of Civil Procedure by Section 34, Patiala Relief of Indebtedness Act, could be regarded as affecting the procedure and he maintained that they affected substantive rights of the parties and as such they could only be applied to proceedings that came into existence after the Act came into force.;

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