AGHA JAFAR ALI KHAN AND ORS. Vs. RADHA KISHEN AND ORS.

JUDGEMENT

(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.

(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: