A. Gurusamy vs G. Gnanasekaran

K. Ravichandrabaabu, J.—This civil revision petition is filed against an order passed in E.P. No. 7/2006 in O.S. No. 120/2005 on the file of

the District Munsif Court, Polur whereby the Executing Court refused to proceed against Item No. 1 of the schedule property for realisation of the

decretal amount on the ground that the said property being a house is not liable for attachment u/s 60(c) of C.P.C. as the respondent/judgment

debtor is a labourer whose property is exempted from attachment under the said provision. Heard both sides.

It is the contention of the learned counsel appearing for the petitioner/decree holder that such finding rendered by the court below is without any

basis and without any material evidence placed by the judgment debtor to prove that he is a labourer.

On the other hand, it is the contention of the learned counsel appearing for the respondent that Item No. 1 of the schedule mentioned property in

the execution proceedings being a house property belonging to the respondent who is a labourer, cannot be proceeded u/s 60(c) of C.P.C. and

therefore, the court below has rightly rejected the claim of the decree holder to proceed against the said property.

A perusal of the order passed by the court below would show that it came to the conclusion that the judgment debtor is a labourer and

consequently, his house property cannot be attached u/s 60(c) of C.P.C., without there being any material evidence placed by the judgment debtor

in support of his claim. It appears that both sides have not let in any evidence in support of their rival claim. Therefore, I am of the view that the

finding rendered by the court below based on mere affidavit filed by the judgment debtor cannot be sustained in the absence of any material

evidence placed before the court in support of such contention. No doubt, the court below observed that the decree holder can proceed against

the other two items in the schedule for realisation of the decretal amount.

Learned counsel for the petitioner invited my attention to the counter affidavit by the judgment debtor wherein he has stated that he is not owning

any piece of land and therefore, there is no purpose in proceeding against those two items. I am not expressing any view on this aspect. I am only

remitting the matter to the court below for considering the rival claim of the parties afresh after affording them an opportunity to produce material

evidence in support of their claim. Accordingly, the impugned order passed in E.P. No. 7/2006 is set aside and the matter is remitted back to the

court below for considering the said application afresh on merits and in accordance with law. As already observed, both sides are at liberty to let in

evidence in support of their claim. After hearing both sides, the court below shall pass orders on merits and in accordance with law within a period

of three months from the date of receipt of a copy of this order. The civil revision petition is disposed of accordingly. No costs. The connected

miscellaneous petition is closed.