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TMI Blog1965 (12) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, e.g., of a requisitioning or the rehabilitation authority? 2 . These questions arise in three appeals from execution proceedings--Execution Second Appeal No. 450 of 1963, Execution Second Appeal No. 812 of 1963 and Letters Patent Appeal No. 120 of 1963. The facts of the cases giving rise to these appeals have been given in the referring order and it is only necessary to notice them briefly. In E.S.A. No. 450 of 1963, the Judgment-debtor is Chandi Ram against whom Kapur Chand respondent obtained a money decree in execution of which he got attached a chaubara and a room in the house in dispute. This house was before the partition of the country Muslim evacuee property and in 1959 Chandi Ram had obtained proprietary rights with regard to the entire house. The portion of the house under attachment was in the tenancy of Mukh Ram, while Chandi Ram resided in the rest of the house. Before Chandi Ram obtained proprietary rights in the house, he as well as Mukh Ram were paying rent to the Custodian of Evacuee Property for use and occupation of their respective portions and it may be added here that Mukh Ram was carrying on Halwai business in the part of the premises which was with h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on factor in the three cases was that a part only in each of the houses in dispute was occupied for residence by the judgment-debtor and his family while there were tenants in the portions of the respective houses, which were under attachment. In the Letters Patent Appeal the tenant had been inducted by the judgment-debtor himself while in the other two cases he was in the premises without the volition of the judgment-debtor. Question No. 3, therefore, arises only in the two Execution Second Appeals and not in the Letters Patent Appeal. 6 . One of the modes of execution of decrees, which are given in section 51 of the Code is by attachment and sale or by sale without attachment of any property. Under Sub-section (1) of Section 60 of the Code various kinds of properties including lands, houses or other buildings over which or the profits of which the judgment-debtor has disposing power which he may exercise for his own benefit, are liable to attachment and sale in execution of decree. Then follows several provisos containing particulars which shall not be liable to attachment and sale and one of these [clause (c)] is "houses and other buildings (with the materials and the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed proprietary rights in the house. Mr. Jain maintained that the words "belonging to a judgment-debtor other than an agriculturist and occupied by him" in the clause governed only the term "main residential house" and not the term "other buildings attached to it" so that all that was necessary to show was that the judgment-debtor was in, occupation of the main residential house while the attached building (the shop in the instant case) could be in the occupation of some one else and would still be exempt from attachment and sate under the proviso. He further stressed the argument that the judgment-debtor had not himself brought in the tenant; that the tenant (Mukh Ram) was in the property even before proprietary rights in it were conferred on the judgment-debtor as a displaced person by way of satisfaction of his verified claim; that Mukh Ram was to be deemed as the tenant of the judgmentdebtor by operation of law under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954; that the law was that under the proviso to sub-section (1) of that section Mukh Ram could not be ejected for a period of two years after Chandi Ram had obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the judgment-debtor and the members of his family, so that if any part of the building was let out either by himself or even by any competent authority without his volition, it could not possibly be treated as being on the date of the attachment in his occupation, there being no such thing as constructive occupation of any property. 11. These are the main respective contentions of the parties and they have now to be examined keeping in view the terms of the statute interpreted according to the wellknown rules of interpretation and, further, the case-law bearing on these points. 12. So far as the house property was concerned, the exemption from attachment or sale originally extended was only with regard to the house and ancillary buildings and land owned and occupied by the agriculturist judgment-debtor. Agriculture was and is most important in the economic life of this country and it was, therefore, considered that an agriculturist's house, his implements of husbandry, etc., necessary to pursue his occupation, should be protected from being attached, or sold at the instance of his creditors. In the Punjab, however, it was considered proper that at least one main res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main residential house" of the owner of the building even if he himself resided in one of the flats. 14. Mr. S.K. Jain then relied on Firm Gurparshad Dewat Ram v. Kishen Chand and another A.I.R. 1938 Lah. 608, for the proposition that the exemption to attachment under section 60(1)(c) attaches to the property itself and not to the person holding it for the time being and the learned Judges, therefore, held that a finding that the property was exempt from attachment obtained in an execution against the judgment-debtor operated as res judicata in subsequent execution against his legal representative. In that case the Judges were not considering the question whether the main residential house would also include any portion of it which was let out to a tenant, viz., the extent of the property to which the exemption attaches, and so for determining this question the case Firm Gurparshad Dewat Ramv. Kishen Chand and another (supra) is of no help at all. If, as contended on behalf of the judgment-debtors, the "main residential house" means the entire building, a part only of which is in the occupation of the judgment-debtor while the other part is with the tenant, then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the word varies according to the context of the statute in which it is used. 16. Mr. S.L. Puri, learned counsel for the decree-holder in the Letters Patent Appeal, in his turn referred to the meaning of the word "occupy" in the Webster's Third New International Dictionary and some of the meanings as given there are--to fill upa place or extent, to take up residence, to settle in, to reside in as an owner or tenant. This indicates that the term "occupy" in relation to a house has an element of physical and actual occupation though not necessarily of every cubic inch of the premises which would, of course, be impossible at any given time. Reference was also made by Mr. Roop Chand to the meaning of the term "occupation" as given at page 15 of Volume 14 of the Halsbury's Laws of England (Third Edition). It was stated that "an occupier is one who actually exercises the rights of an owner in possession. The primary element of occupation is possession, but it includes something more, for mere legal possession cannot constitute an occupation. The owner of a vacant house is in possession, though not in occupation but if he furnishes the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, in Balmukand Khatry v. Hari Narain and others A.I.R. 1949 Patna 31, and on behalf of the decreeholders reliance was placed on the definition of similar terms in section 7(3) of the Madras Buildings (Lease and Rent Control) Act, 1946, as given in Dr. Mohammad Ibrahim v. Syed Ahmed Khan and another A.I.R. 1950 Mad. 556, and in sub-section (5) of section 15 of the East Punjab Urban Rent Restriction Act, 1949, as made in Shakuntla Bawa v. Ram Parkash and others A.I.R. (1963) 1 Punj. 827. These interpretations depend on the particular context in which the terms occur in the relevant statute but what has been observed in most of these cases is that the term "occupation" is of a wider import than the term possession and means something more than legal possession, which may be either actual or constructive. More helpful are some cases which arose in the Punjab under Section 60(1)(c) or (ccc) of the Code. In Jagat Singh v. Phuman Singh and another A.I.R. 1934 Lahore 680, it was held that the expression "occupied by" means "lived in by" or "used for agricultural purposes by" and, of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his authority, therefore, knocks out the argument that even if the whole house is let out by the landlord to a tenant, he can be in any sense said to be in occupation of it and the learned counsel for the judgment-debtors are not right when they say that there is any such thing as "constructive occupation" for the purposes of clause (ccc). The judgment-debtor in order to attract the exemption must be actually in the premises or at least have a right to actual physical possession of them any time he chooses to exercise that right, which would normally be the case if members of his family or other relations or dependents are residing in it. This disposes of the extreme position taken on behalf of the judgment-debtors, but there still remains the question as to what would be the legal position if only a part of the house is in the actual occupation of the judgment-debtor while the other part of the house is let out to a tenant. Will the whole house or only that part which is in the actual occupation of the judgment-debtor be entitled to exemption ? This is point No. 1 referred to the Bench. 19. For the reasons given earlier in this judgment, I am of the view that the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo and to add force and life to the cure and remedy, according to the true intent of the makers of the Act 'pro bono publico'. 2 0 . It was again stated in Kanwar Singh and others v. The Delhi Administration A.I.R. 1965 S.C. 871, that it is the duty of the Court in construing a statute to give effect to the intention of the legislature. If therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief, the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief. The difficulty, however, is to apply these principles to the facts of a particular case and I take it that the cardinal principle of interpretation of statutes that a statute, which is on its face clear, precise and unambiguous, cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion must be deemed to be simultaneously in occupation of the portion let out. It would, in my view, be absurd to say that at a particular date--and the relevant date in this context is the date of attachment of the property--the judgment-debtor as well as the tenant are simultaneously in possession of the rented property. 21. Coming now to the decided cases of our Court bearing on clause (ccc) reference on behalf of the judgment-debtor's was made to three reported cases--by Kapur, J. (as he then was) Agha Jafar Ali Khan and Others v. Radha Kishen and others A.I.R. 1951 Punj. 433, by Tek Chand, J., F. Ganga Ram- Kishore Chand v. F. Jai Ram-Bhagat Ram I.L.R. 1957 Punj. 1588 : 1957 P.L.R. 325, and by Shamsher Bahadur, J., Piyare Lal-Gobind Ram v. Ram Lal 1963 P.L.R. 641, and three unreported cases--Kundan Lal v. Ram Chand and others (Execution First Appeal No. 185 of 1956, decided on the 8th December, 1958, by Gosain, J.), Daulat Ram Narula v. Shrimati Sheela and others (Execution First Appeal No. 21 of 1958, decided on the 8th April, 1959,by Dulat, J.), and Kharaiti Ram v. Partap Singh and another (Execution Second Appeal No. 1080 of 1962, decided on the 2nd January, 1964, by G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oor were used by the judgment-debtor for his residence while a part of the ground-floor was being used as a shop and the learned Judge followed the decision in Kundan Lal v. Ram Chand and others (Execution First Appeal No. 185 of 1956, decided on the 8th December, 1958). In all these cases as well as in Daulat Ram Narula v. Smt. Sheela and others (supra) the major portion of the building in question was used for residential purposes of the judgment-debtor while in the smaller portions there were some shops which were rented out to others and the learned Judges considered that having regard to the purpose of the building as a whole, which was a residential premises of the judgment-debtor, it must be held that the whole building was exempt from attachment. With due respect to these learned Judges I do not see how the statute itself provides any warrant for the consideration which weighed with them, and when the judgment-debtor has chosen to let out a portion of the building to tenants and thereby exclude himself for the period of tenancy from the occupation thereof, he cannot, when the attachment takes place during the period of tenancy, turn about and say that even the portion which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 963). It was held that the portion of the disputed house, which is requisitioned by Government, was not exempt from attachment and sale in execution of the decree while the remaining portion, which was in the actual occupation of the judgment-debtor or his legal representatives was exempt from such attachment and sale. 24. It was on account of the conflict inter se in these authorities that these cases were referred to the Full Bench. The matter would now seem to be decided by the observations of the Supreme Court in the Cantonment Board, Ambala Cantt. v. Dipak Parkash (Minor) and others A.I.R. 1963 S.C. 963, to which reference has already been made and I think it is impossible to say that the landlord can possibly be deemed to be in occupation of the portion which is with his tenants. 25. With due respect to the learned Judges, who held the contrary view, I am, for the reasons given above, clearly of the view that when the judgment-debtor has himself let out a portion of the house, he cannot under clause (ccc) be deemed to be in occupation thereof, even if the remaining part of it is occupied by him and hence I would answer the first question under reference in the negative. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, it may also be said that a dishonest judgment-debtor may get round an authority to requisition even that part of the house which he is himself not using or which had previously been let out to a tenant. These are hypothetical cases which cannot be taken into consideration while interpreting the statute and on principle I do not see how, having regard to the plain terms of the statute, any distinction can on legal grounds be made between a case where part of the house is let by the judgment-debtor himself and a case in which the tenant had been inducted by a competent authority such as the Requisitioning or the Rehabilitation authorities. In each of these cases the inescapable fact is that on the relevant date, that is, at the time of attachment, the portion of the house, which is sought to be attached, is not in the occupation of the judgment-debtor. As stated above, even in the case of requisitioning which is a much stronger case than one in which the tenant was inducted in the house by the Rehabilitation authorities prior to its purchase by the judgment-debtor--it was held by a Division Bench in Birch v. Siri Raj and others (Execution First Appeal No. 35 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... * * * * * * * (ccc) One main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him." In order to get the benefit of the provisions of this section, a non-agriculturist-judgment- debtor has to prove (a) that the property in question is his main residential house or other buildings attached to it and (b) that the same is occupied by him. Whether a particular property is the main residential house of a judgment-debtor is a pure question of fact and has to be determined on the facts and circumstances of each case. Then the question arises whether the same is being occupied by him or not. The literal meaning of the word "occupy" with reference to some property is to be in its physical possession, but that is not its only meaning as P. Ramanatha Iyer in his book "The Law Lexicon of British India" at page 897 has said-- "The word 'occupy' is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense, as when occupati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first time that the non-agriculturist-judgment-debtors were also given the relief by introducing section 60(1)(ccc). The object of this provision was that at least one main residential house of the judgment-debtor should be exempt from attachment and sale in execution of a decree against him. Previously, it were only the agriculturist-judgment-debtors, who were being benefited by Section 60(1)(c) which laid down that their houses and other buildings belonging to and occupied by them were exempt from attachment and sale. In their case, all their houses, which were occupied by them, could not be attached by the decree-holder. In the case of non-agriculturist-judgment-debtors, it is only one main residential house to which exemption has been granted. Tek Chand, J., in F. Ganga Ram-Kishore Chand v. Jai Ram-Bhagat Ram I.L.R. 1957 Punj. 1588 : 1957 P.L.R. 325, has also held that the Object of Section 35 of the Punjab Relief of Indebtedness Act, 1934, which amended Section 60(1) of the Code of Civil Procedure, appeared to be to leave every debtor in possession of one residential house for his habitation, though the Act was a measure which was designed in the main to relieve agricultural i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in occupation thereof. In certain cases where the servants are in possession, the occupation is considered to be that of their masters. While interpreting the word "occupation" occurring in section 99(2) of the Cantonment Act, 1924, the Supreme Court in the Cantonment Board, Ambala Cantonment v. Dipak Parkash and others A.I.R. 1963 S.C. 963, observed thus-- "It is worth noticing that while section 65(1) speaks of actual occupation by the owner and makes the tax primarily leviable on the owner if he is the actual occupier, Section 99(2) uses the words 'in the occupation of the Central or any State Government' and not 'in the actual occupation of the Central or the State Government'. Even so, it has been argued by Mr. Sen that the word 'occupation' without anything more, should ordinarily be interpreted as actual occupation. While this may be correct, we find it difficult to agree that when a person, entitled to actual occupation by reason of his lease permits another to occupy it, then it ceases to be in the actual occupation of the person so permitting. Where the Central or the State Government after obtaining the lease under Section 7 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature by introducing section 60(1)(ccc). As already mentioned above, they should also be deemed to be in occupation of those portions of the main residential houses as well and their one main residential house should not be attached and sold in execution of the decree. A contrary view was taken by a Bench decision of this Court in L. Birch v. Siri Raj and others, Execution First Appeal 35 of 1957, decided by Dulat and Dua, JJ., on 14th January, 1960. In that authority, onehalf of the main residential house of a judgment-debtor was requisitioned by the Government and was in actual occupation of a Government Officer. It was held that the exemption under section 60(1)(ccc) did not extend to the portion that had been requisitioned. Dulat, J., who wrote the judgment in that case, and with whom Dua, J., agreed, observed-- "Counsel then pointed out that in any case, one-half of the house is not in the actual occupation of the judgment-debtor's representatives, that is, the portion which has been requisitioned, and the exemption cannot extend to that portion. There is force in this contention. Mr. Sodhi's answer to this part of the case is that the portion requisition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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