Attachment--Exemption of one main residential house--Is not available to any property specifically charged with debt sought to be recovered.

Mr. L.N. Mittal, J.: (Oral) — In this revision petition filed under Article 227 of the Constitution of India, decree holder (DH), State Bank of Patiala has assailed orders dated 22.4.2010, Annexure P/2, dated 13.8.2010, Annexure P/3 and dated 26.8.2010 Annexure P/4 passed by the executing court.

2. Suit filed by petitioner against respondents was decreed vide judgment and decree dated 10.6.2003, Annexure P/1 to the following effect:-

“In the light of my above discussion on very issues the suit of the plaintiff is hereby decreed with cost against defendants and the plaintiff bank is entitle to recovery Rs 1,64,697/- alongwith pendente lite and future interest at the rate of 12½ % P.A. with quarterly rest from the defendants and a preliminary decree is passed in favour of plaintiff against defendant and defendants are directed to make the payment within 3 months from today and they are jointly and severally liable to make the payment of the decretal amount alongwith interest referred above, failing which this preliminary decree will automatically become final decree and the plaintiff bank will be entitled to recover the decretal amount alongwith interest referred above by sale of mortgage property and other immovable/moveable property of the defendants and by sale of hypothecated vehicle bearing registration No. HR-37D-0119 and the defendants are jointly and severally liable to make the payment. Decree sheet be prepared accordingly. File is consigned to record room after due compliance.”

3. Petitioner filed execution petition for executing the said decree. In the execution petition, the petitioner moved application for sale of mortgaged property. Respondents/Judgment debtors (JDs) resisted the said application by alleging that the mortgaged property being residential house cannot be sold. Learned executing court vide impugned order Annexure P/2 observed that the residential house is not liable to be attached under section 60 of the Code of Civil Procedure (in short, CPC) and consequently, application moved by petitioner for sale of the mortgaged house was dismissed. Application moved by petitioner for review of the said order was dismissed by the executing court vide order Annexure P/3. Thereafter the executing court dismissed the execution petition itself vide order Annexure P/4 due to non filing of list of any other property of JDs for attachment and sale. Feeling aggrieved, DH has filed this revision petition.

4. I have heard learned counsel for the parties and perused the case file.

5. Counsel for the petitioner contended that the petitioner was not seeking attachment of the house in question but was seeking sale thereof pursuant to decree Annexure P/1 being mortgaged property and therefore, section 60 CPC was not attracted. It was argued that even under section 60 CPC, the mortgaged property is not exempted from attachment even if it be the sole residential house of JD.

6. There is considerable merit in the aforesaid contentions which could not be countered by counsel for the respondents. Section 60(i)(ccc) of CPC, as inserted in Punjab by amendment, reads as under:-

“Provided that the following particulars shall not be liable to such attachment or sale namely:-

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(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 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.”

7. Thus from the bare provision itself, it is manifest that exemption of one main residential house from attachment is not available to any property specifically charged with the debt sought to be recovered. In the instant case, the house sought to be sold in execution is the mortgaged property specifically charged with the debt sought