STATE BANK OF INDIA, BATHRI Vs. BALAK RAJ ABROL
HIGH COURT OF HIMACHAL PRADESH
STATE BANK OF INDIA, BATHRI
BALAK RAJ ABROL
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(1.) The property belonging to judgment -debtors impleaded as respondents 2 and 3 contained in Khewat -Khatauni No 19/24 along with the land appertaining thereto in Mauza Bathri, Tehsil Bhatiat, District Chamba, has been attached in execution of a money decree obtained by the decree holders against them. The objectors claim l/6th share in a two -storeyed pucca house situate upon the property referred to above. They have filed the instant objections under Order XXI Rule 58 read with section 60 (ccc) of the Code of Civil Procedure as amended by the State of Punjab and as applicable to the State of Himachal Pradesh. Objectors allege that as their attached property is their main residential house it is exempt from attachment under the aforesaid provision of clause (ccc) of section 60 (I) C.P.C. added thereto by the Punjab Relief of Indebtedness Act VII of 1934 as amended by Punjab, Acts No. XII of 1940 and VI of 1942.
(2.) There is no dispute to the legal proposition that by virtue of the aforesaid amendment one main residential house and other buildings attached thereto (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, is exempt from attachment in execution of a decree provided that the protection afforded by this clause would not extend to any property specifically charged with the debt sought to be recovered.
(3.) Objectors have taken shelter by moving the aforesaid application whereas decree holder has vehemently resisted and contested the aforesaid pleas so raised now by the former. The controversy arose between the parties as to whether the attached property situate at village Bathri referred to above was the main residential house of the judgment debtors and as such exempt from attachment. An issue was accordingly framed by this Court on 5 -12 -1988 as under :
1.Whether the house and land appurtenant thereto is not liable to attachment or sale in execution of the decree in favour of the respondent -decree -holder ? O. P. Objector. 2.Relief.
The parties have since concluded their evidence on this issue but I feel that consideration thereof is unnecessary as the provision relied upon by the judgment -debtors in support of their contention that the property is exempt from attachment has since been repealed. The reason being that it has been concluded not only by the judgment of a learned Single Judge of our own High Court in the case of M/s. Amar Chand Butail & Sons, decree holders (plaintiffs), v. M/s. Hazari Mal Kuthiala & Sons and others, judgment -debtors, in Objections in Execution Petition No. 7 of 1978, decided on 7 -8 -1979, but also this legal proposition finds support from the decision of the Supreme Court vide observations made in the case of Ganpat Giri v. Und Additional District Judge, Balia and others, reported in 1986 Supreme Court and Full Bench Rent Cases 323. It has been laid down therein that : "The effect of section 97 (I) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provisions in the Code has been amended or modified by the Amending Act and that was subject only to what was found in sub -section (2) of section 97. Sub -section (3) of section 97 provides that save as otherwise provided in sub -section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or bad accrued before such commencement. Sub -section (3) of section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to subjection (2) of section 97.";
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