Alagiriswami, J. - (1.) This is an appeal by certificate against the judgment of a Division Bench of the Punjab High Court in a Letters Patent Appeal.
(2.) The question for decision in this appeal depends upon the interpretation of clause (ccc) added to the proviso to sub-s. (1) of S. 60 of the Code of Civil Procedure by Punjab Relief of Indebtedness Act 7 of 1934 as amended by Punjab Acts 12 of 1940 and 6 of 1942 exempting from attachment - " 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." The facts giving rise to this appeal are as follows. The appellants are two brothers and their sons. They constituted a firm called Jahangiri Mal Kalu Ram. On 19-11-1956 they were declared insolvents and the Official Receiver took possession of all their properties including the building in dispute. On 21-11-1956 the appellants filed an objection petition under S. 60 of the Code of Civil Procedure read with Section 4 of the Provincial Insolvency Act in respect of taking the possession of the building in dispute basing this upon clause (ccc) above referred to. The Official Receiver contended that the property in dispute is not a residential house but a shop and that the back portion of the building which consists of a kitchen and raised platform etc. for placing water was given in trust to the petitioners for residential purposes at the time of taking the possession of the shop. The creditors also contended that the property in dispute is a shop and not a residential house, even though the appellants were admitted to be using the back portion of the shop as their residence.
(3.) The Trial Court held that:".........the entire building consists of two distinct units, the one opening in the chowk of the mandi being distinct business premises as a shop while the other structure on the back there of is exclusively a residential house. The unit which is a shop has the main hall which has two apartments on account of the arched columns in the middle, and the kotha immediately behind the said hall. I consider this kotha to be an integral part of the shop because there is no indication at the spot that it was an essential part of the residential house. To the contrary, the Staircase leading from the hall on to the roof of that kotha and the steps from the roof on that kotha leading to the roof of the hall and to the room on a portion thereof, show that the said kotha is an integral part of the Shop itself. The two units being the property of the same persons naturally we would expect connecting doors between these two units." He, therefore, upheld the objection petition of the appellants in respect of the portion BCDE in the plan and the upper storey thereon and dismissed it in respect of the rest of the building. On appeal by the insolvents the learned District Judge of Hissar held that there was no manner of doubt that the building in question is the main residential house of the insolvents and allowed the appeal. On appeal by the creditors a learned Single Judge observed: " Accepting the finding of the insolvency Judge that the shop has a separate access of its own it cannot be denied that the residential portion is connected with it. The shop is in the ground floor and there is an opening in the Mandi but it is connected with the residential portion on the same floor. The other portion of the building is entirely devoted to residential purposes." In the result he held: " It is only a portion of the ground floor which has been used for shops. In my opinion, the view adopted by the lower appellate court is in conformity with the intent and language of the Legislature and is also in accord with the authorities of this Court ". On a further appeal under the letter Patent the Division Bench purporting to follow the Full Bench decision of that Court in Ude Bhan v. Kapoor Chand, ILR (1966) 2 If Punj 400 where it was held that if out of the main residential house belonging to a non-agriculturist judgment-debtor a portion is let out by him to a tenant, the whole house could not be said to be in his occupation, allowed the appeal and set aside the judgments of the learned Single Judge as well as the District Judge and restored the order of the Insolvency Judge.;