JUDGMENT
A.L. Bahri, J.
1. The petitioner, Smt. Pushpmala Jain, is the guarantor-judgment-debtor and challenges in this revision petition order dated May 16, 1987, passed by the Senior Sub-Judge, Rohtak, dismissing the objections filed by the judgment-debtors in execution of the decree.
2. This revision petition was earlier disposed of by D.V. Sehgal J, on October 26, 1988, in the absence of the Bank of Baroda, the decree-holder-respondent. On the application moved by the bank, the order was recalled by the Division Bench, vide its order dated September 27, 1989. Hence this revision petition being restored is for disposal. I have heard counsel for the parties.
3. Two questions have been debated, firstly, relating to limitation for filing objections and, secondly, relating to exemption from sale of the portion of the house in dispute which was attached, The exemption was claimed under Section 60(1) of the Code of Civil Procedure. The relevant facts may briefly be noticed as under :
4. The bank filed a suit for the recovery of Rs. 6,27,798.39 against the principal debtors as well as the guarantor. The suit was filed on May 25, 1979. During the pendency of the suit, on an application moved under Order 38 of the Code of Civil Procedure, the house in dispute belonging to the judgment-debtors was attached. No objections to the attachment of the house were filed during the pendency of the suit which was decreed on January 5, 1983. On the amount decreed, some interest was also allowed. On appeal, the liability of the guarantor was limited to the extent of Rs. 5,50,000. When execution was taken, objections were filed by the judgment-debtors that the house was the main residential house of the judgment-debtors and was thus exempt from attachment and sale. A plea was raised by the bank that the objections
filed were barred by time in view of Article 137 of the Limitation Act and the portion of the building in dispute was not exempt as claimed. Other portions of the building were let out to tenants and the judgment-debtors were not residing in the remaining portion. The executing court held that the house in dispute was liable to be sold in execution of the decree as the judgment-debtor had failed to establish that she and her children were residing in the house in dispute. The objections were held to be barred by limitation.
5. The contention of counsel for the petitioner is that the cause of action for filing objections accrued only after the decree was passed in the suit and even though the property was attached during pendency of the suit, execution could only be filed after the decree and objections to the execution thus could be filed after the decree.
6. Attachment before judgment is effected under Order 38, Rule 1, Civil Procedure Code. Under Order 38, Rule 11, the attachment is to continue and after passing of the decree, no fresh order for attachment is necessary. Even if attachment proceedings are not concluded during pendency of the suit, the same can be continued even after the date of decree as held by the Andhfa Pradesh High Court in J. Rama Murthy v. Srinivas Corporation General Merchants and Commission Agents, AIR 1989 AP 58. A similar view was taken by the Calcutta High Court in Haridas Haldar v. Charu Chandra Sircar, AIR 1933 Cal 757. However, from the ratio of the decision referred to above, it cannot be held that any objections to the execution could be filed before passing of the decree. Such objections which the judgment-debtor may choose to take to the execution of the decree haye to be after the decree is passed and execution is taken. There is no bar that, when during pendency of the suit, some property is attached, some objections to the attachment could be filed. But the limitation for filing objections would accrue only on the passing of the decree or thereafter as contemplated under Section 47 of the Code of Civil Procedure. It postulates passing of the decree and questions regarding its execution, discharge or satisfaction to be determined by the executing court and not by a separate suit. Order 21 refers to proceedings to be taken in execution of the decree. Under Article 137 of the Limitation Act, the right to file objections to the execution would accrue only after passing of the decree and not earlier. The approach of the court below to the contrary is not correct.
7. On behalf of the bank, it has been argued that objections which could be taken up in the suit cannot be taken up in execution. In support of this contention, reliance has been placed on the decision of the Karnataka High Court in Neelavva v. Kareppa Bapu Bandigani, AIR 1986 Kar 224. The decision aforesaid is not applicable to the case in hand. To file objections in the execution is entirely an independent right which a judgment-debtor can exercise only
after the passing of the decree. Before that, he could not contemplate that the decree on merits would go against him. In Neelavva’s case, AIR 1986 Kar 224, the dispute was regarding maintenance which was made a charge on the property. It could be challenged in the suit itself and not subsequently in the execution. The decision of this court in Avinash Chander v. Mohan Lal, AIR 1984 P & H 391, is not helpful to the bank as the question involved therein was whether the judgment-debtor was an artisan qua the attached lathe machine. On merits, it was held that the lathe machine was not a tool of an artisan. In the facts of the case in hand, the court below was wrong in holding the objections to be time-barred.
8. The other question debated relates to the exemption from sale of a portion of the building in dispute which is alleged to be in the possession of the judgment-debtor and his family members as residence. The approach of the court below does not seem to be correct in appreciating the evidence produced in the case. A finding has been recorded that the judgment-debtor had failed to establish that a portion of the building was in her possession and used as her as well as her family members’ residence. Although the judgment-debtor, while appearing in court, deposed that she and her family members were residing in a portion of the building in dispute, her statement was brushed aside on the ground that ration cards or voters’ list were not produced to corroborate her statement. No question during cross-examination was put to the judgment-debtor whether she was residing at a place other than the house in dispute. It is” pertinent to note that the bank has its own office in the building in dispute. It was very easy for an official of the bank to state regarding the place where the judgment-debtor was residing at the relevant time if not in the portion of the building in dispute. C. L. Kalra, DHW 1, appeared in the witness-box on behalf of the bank and remained satisfied by simply saying that the judgment-debtor was not residing in the portion of the building in dispute. As already noticed above, no suggestion was put by him that judgment-debtor in fact was residing somewhere else. There is no reason to discard the statement of the judgment-debtor given on oath in this case that she and her family members are residing in a portion of the building in dispute. The other building admittedly is in the possession of the tenants. The result would be that the portion of the building which is being used for residence of the judgment-debtor would be exempt from sale under Section 60(1) of the Code of Civil Procedure whereas the remaining portion which is with the tenants would be liable to be sold in execution of the decree.
9. For the reasons recorded above, this revision petition is partially allowed as above. There will be no order as to costs.