Back
High Court Of Madhya Pradesh
H. G. Mishra, J.
RAM SINGH - Appellant
Versus
BHERULAL - Respondents
Misc. Appeal 171 Of 1976
Decided On : 11/24/1981
CIVIL PROCEDURE CODE - SECTION 60(1)(C) - ATTACHMENT AND SALE - IMMUNITY - HOUSE OCCUPIED BY AGRICULTURIST - RIGHT TO OBJECT - TIME - DOCTRINE OF CONSTRUCTIVE RES JUDICATA - APPLICABILITY.
Fact of the Case:
The judgment-debtor-appellant challenged the order of the lower courts rejecting his objection to the attachability and saleability of his house, which was attached in execution of a money decree obtained against him by the decree-holder-respondent. The appellant claimed immunity from attachment and sale under Section 60(1)(c) of the Code of Civil Procedure (CPC), as the house was occupied by him, an agriculturist, and was being used for agricultural purposes. The lower courts held that the appellant's objection was barred by the doctrine of constructive res judicata, as he had failed to raise it before the issuance of the sale proclamation.
Finding of the Court:
The High Court held that the appellant had the right to object to the attachability and saleability of the house even after the issuance of the sale proclamation, as the immunity conferred by Section 60(1)(c) of the CPC was independent of the right to object to attachment. The court found that the lower courts erred in applying the doctrine of constructive res judicata to bar the appellant's objection.
Issues: 1. Whether the appellant had the right to object to the attachability and saleability of the house after the issuance of the sale proclamation. 2. Whether the doctrine of constructive res judicata barred the appellant's objection.
Ratio Decidendi: 1. The court held that the appellant had the right to object to the attachability and saleability of the house even after the issuance of the sale proclamation, as the immunity conferred by Section 60(1)(c) of the CPC was independent of the right to object to attachment. The court reasoned that the use of the word 'or' instead of 'and' in the proviso to Section 60(1) indicated that the Legislature intended to confer twofold rights on the judgment-debtor: the right to object to attachment and the right to object to sale. 2. The court held that the doctrine of constructive res judicata did not bar the appellant's objection, as he had not had a previous opportunity to raise it. The court noted that the appellant had not been served with notice of the sale proclamation in accordance with the law, and that he had submitted his objection promptly after learning of the attachment.
Final Decision: The High Court allowed the appeal, set aside the impugned order, and directed the Executing Court to hold an inquiry into the appellant's objection regarding the saleability of the house in dispute.
( 1 ) THIS is an appeal against the order passed by the Addl. District Judge on 306-1976, whereby the order passed by the Executing court on 25-10-1976, rejecting objection about attachability and saleability of the house in dispute, in view of the provisions placed in Section 60 (1) (c) of the Code of Civil procedure, has been affirmed.
( 2 ) FACTS material for the decision of this appeal are as under: The decree-holder-respondent-herein obtained a money decree against the judgment-debtor-appellant-herein in Civil Suit No. 38b of 1971, from the Court of Civil Judge, Class II, Neemuch, He put this decree in execution, the execution case being 197 of 1972, and attached the house belonging to the judgment-debtorappellant on 30-4-1975. Thereafter a notice under Order 21, Rule 66, C. P. C. was issued for 5-8-1975. However, the said notice was served by affixure on 25-7-1975, as per the report of the process-server dated 26-7-1975, On 5-81975 the Executing Court passed an order to the effect that service of notice under Order 21, Rule 66, C. P. C. has been effected on the judgment-debtor. Now, the decree-holder wants to put to auction the said house belonging to the judgment-debtor, which has already been attached. Accordingly, the Court directed issuance of a proclamation of sale for 29-9-1975 and fixed 30-9-1975 as date of hearing in the case. The judgment-debtor-appellant submitted an application on 8-8-1975, wherein it was contended that attachment has not been effected in accordance with law and that the house attached is immune from sale by virtue of the provisions placed in the proviso (c) to Section 60 (1), C. P. C. as it is occupied by the judgment-debtor, who is an agriculturist and is being used for agricultural purposes. This application was opposed by the decree-holder inter alia on the ground that it is barred by the doctrine of constructive res judicata. This objection found favour with the Executing Court and by order dated 26-10-1975 the Executing court rejected the application as being barred by constructive res judicata. Aggrieved by this order the judgment-debtor preferred an appeal, which has been dismissed. Hence this appeal.
( 3 ) IN this appeal it was contended by Shri D. D. Vyas, learned counsil for the judgment-debtor-appellant that the doctrine of constructive res judicata has been erroneously applied, because the judgment-debtor has right to object to the saleability of the house in dispute at any time prior to its sale. Shri V. K. Dube, learned counsel for the respondent argued in support of the impugned judgment and decree. Having heard the learned counsel for the parties. I have come to the conclusion that this appeal deserves to be allowed to the extent indicated hereinafter. ( 4 ) IN this case, as stated above, the Executing Court had ordered issuance of notice under Order 21, Rule 66. C. P. C. for settlement of terms for proclamation of sale by public auction. The notice was served by affixure, although at the relevant date, i. e. on 25-7-1975, it was reported that the judgment-debtor had gone out. However, the question of invalidity of service of the notice under Order 21, Rule 66, C. P. C. has lost significance because on 58-1975 the judgment-debtor along with his counsel were present in the Court and it was in their presence that the Executing Court had passed the order directing issuance of the warrant for sale, as stated above.
( 5 ) NOW, the question which crops up for consideration is whether the judgment-debtor-appellant had right to submit objection against attachability and saleability of the house in question after passing of the order dated 5-8-1975 by the Executing Court. The law On the point has been laid down in Balkrishna v. Changdeo (AIR 1943 Nag 330), thus:
"in Rukhmabai v. Ramchandra, 21 Nag LR 23 : (AIR 1925 Nag 320 ). which was cited with approval by Bose, J. , in Mt. Laxmibai v. Sevakram : ILR (1936) Nag 30 : (AIR 1936 Nag 123) it was held that objections to a
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
