A main residential house, even if subject to a charge of debt, is exempt from vesting in the insolvency Court under Section 28 (2) of the Provincial Insolvency Act, 1920, if it is exempt from attachment or sale in execution of a decree by virtue of the provisions of Section 60 (1) (ccc) of the Code of Civil Procedure.

D.S.TEWATIA, J.

1. These two appeals (S.A. Os. Nos. 17 and 18 of 1969) at the instance of the insolvent Brij Mohan Lal arise from a common order and involve common questions of law and facts and, therefore, we propose to decide both by a common order.

2. The importance of the question of law involved, and a further circumstance of the same being bereft of any authority directly bearing thereon, necessitated the hearing of these two appeals, on a reference, by a Division Bench which, in turn, for the very reasons referred these appeals for decision by a larger Bench, and that is how these are before us.

3. The two propositions of law, as formulated by the referring Bench, on the resolving of which depends the determination of the fate of these two appeals are-

1. Whether an independent and well demarcated portion of a residential building used and occupied by a debtor for business purposes would be exempt from attachment and sale in terms of provisions of Section 60 (1) (ccc) of the Code of Civil Procedure and consequently exempt from vesting under Section 28 (2) of the Provincial Insolvency Act (V of 1920) - hereinafter referred to as the Act;

2. As to whether or not a main residential house of an insolvent subject to a charge of debt would vest under Section 28 (2) of the Act in the insolvency Court.

The only facts that are relevant to the aforesaid questions and which are not in dispute can be stated thus : Appellant Brij Mohan Lal was adjudicated insolvent. He applied to the insolvency Court for the exemption of his main residential house from vesting under sub-section (2) of Section 28 of the Act in the said Court or the Receiver appointed by it. The insolvency Court as also the trial Court, whose order is under challenge in these appeals, found as a fact that the building in question, which consisted of four rooms on the ground floor, four rooms on the first floor and one room on the second floor, was the main residential house of insolvent, of which the ground floor was exclusively used by him for carrying on his business and that the said building was under mortgage with the Punjab and Sind Bank Limited. Ambala City.

4. The first question stands resolved authoritatively by the judgment of their Lordships of the Supreme Court rendered in Ram Lal V/s. Piara Lal Gobindram, AIR 1973 SC 2124. The following observations of their Lordships may in this regard be noticed with advantage :

"The question for decision in this case is whether if a portion of the residential house is occupied by the judgment-debtor himself for the purposes of a shoo that portion ceases to be part of the residential house. It appears to us clear that it does not. In the circumstances and social conditions of this country it would be difficult to justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house. As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocate s library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house. The Punjab High Court has taken the same view at least from the year 1951. In Agha Jafar Ali Khan V/s. Radha Kisnan, AIR 1951 Punj 433, it was held that- "Where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house."

The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment-debtor or was rented out by him. A careful readme of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except