AGHA JAFAR ALI KHAN AND ORS. Vs. RADHA KISHEN AND ORS.
LAWS(P&H)-1950-10-17
HIGH COURT OF PUNJAB AND HARYANA
Decided on October 05,1950

Agha Jafar Ali Khan And Ors. Appellant
VERSUS
Radha Kishen And Ors. Respondents

JUDGEMENT

Kapur, J. - (1.) THIS is a D.H.'s appeal against an order passed by Mr. Harnam Singh, Subordinate Judge, 1st Class, Amritsar, dismissing the Appellant for execution of the D.H. and accepting the objections of the J.D. that the property sought to be sold in execution was a house used for residential purposes of the J.D. and was therefore exempt from attachment and sale in execution of a decree.
(2.) RADHA Kishan, the present J.D. obtained a decree against Hari Singh and in execution of that decree he had some property of Hari Singh sold which was purchased by Agha Mohammad Sultan. An objection was successfully raised by the Shiromani Gurdwara Parbandhak Committee under Order 21, Rule 53, Code of Civil Procedure that the property belonged to Gurdwara Shahid Ganj Bhai Taru Singh and as a result the sale was set aside. Radha Kishan and the auction purchaser some time before the decision of the objections agreed with each other that the sale be confirmed and the D.H. be allowed to take away the purchase money subject to his furnishing security for its refund in case the property was proved to belong to the Gurdwara. One Atma Singh stood surety and Radha Kishan was allowed to take away Rs. 11,100 which was the sale -price of the property sold. Subsequent to the order accepting the objections Agha Jafar Ali Khan, presumably as the legal representative of the original purchaser, appld. to the executing Court for the return of his purchase money. Nothing seems to have been done for some time and ultimately he applied for recovery of his money by attachment and sale of the property bearing Khana shumari No. 1264 situate in Chowk Nimak Mandi, Amritsar. An objection was raised that this particular property was a residential house and therefore, under Section 60, Code of Civil Procedure exempt from attachment and sale in execution of a decree. This matter was put in issue and the learned Judge held on 2 -8 -1945 that the property in dispute was a residential house and therefore, could not be sold in execution and allowed the objections of the J.D. This is the subject -matter of the present appeal.
(3.) IN support of the objection, the J.D. produced seven witnesses all of whom stated that the property in dispute is being used for residential purposes. A plan of the building now sought to be sold was filed in Court on 12 -7.1938 and therein the property was described as house No. 1264 situate in Nimak Mandi, Amritsar. The warrant of attachment which was issued for this purpose on 6 -10 -1938 also described the property as a residential house. As I have said before the witnesses and the J.D. have deposed on both that the property is being used for the purposes of residence of the J.D. and his family. As against this there is the evidence of four witnesses produced by the judgment -creditor, Muzaffar Ali P.W. 1 who produced copies from Municipal record showing that the nature of the property was a shop with upper storeys. Tek Chand P.W. 2, Babu Ram and Haveli Ram P.ws 3 and 4 have also appeared as witnesses for the D.H. but they do not seem to throw much light on the subject. At any rate, the learned Judge has not reld. On their evidence. Whether the lowermost storey is being used as a shop would not convert a residential house into a shop. The exemption under Section 60 is in the following words: (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 J.D. other than an agriculturist and occupied by him.... Under this definition if that is the main residential house, then that building with all other buildings attached to it would be a residential house for the purposes of the exemption. In this case there is evidence to show that the whole building is being used for the purposes of residence and even if there is a shop on the ground floor it cannot be said that that alone will convert it into something different from a residential house. I, therefore, hold that the property in dispute is a residential house within Section 60, Code of Civil Procedure and the learned executing Court has rightly come to the conclusion that it cannot be attached or sold in executing of the decree. I dismiss this appeal and affirm the order of the learned Judge of the executing Court. The Respondent will have his costs in this Court.;


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