Chamakura Brahmaiah (died) per L.Rs. vs Thota Ganganna and Others

Syed Shah Mohammed Quadri, J.—The petitioners herein are the L.Rs. of the deceased petitioner-1st respondent The petitioner-1st respondent is one of the Judgment-debtors in O.S.No. 397/68 on the file of the 1st Addl. District Munsif, Tanuku. He had mortgaged his residential house amoung other properties for securing the loan of Rs. 4,783-85 ps. on 10-12-1957. The first respondent herein filed the suit for recovery of the amount by sale of mortgaged property. A preliminary decree was passed in this suit on 5-11-1968. Thereafter a final decree was also passed on 12-8-1969. The first respondent herein filed E.P.No. 126/78 for sale of the mortgaged properties. The deceased petitioner-1st respondent filed objection to the executability of the decree and the sale of the building occupied by him by claiming benefit of Section 60(1)(c) C.P.C. The heirs of the judgment-debtors also claimed that they were small farmers and were entitled to the benefit of Act. 7 of 1977.

The decree-holder-1st respondent herein examined two witnesses as P.Ws.1 and 2 and the 3rd judgment-debtor examined himself as R.W.I and Exs.A-1 to A-10 were marked through witnesses.

On a consideration of the evidence on record, the Executing Court overruled the objection raised by the petitioner-1st respondent that item No. 1 of E.P. Schedule was exempted from attachment and sale u/s 60(1)(c) C.P.C. and that he was entitled to the benefits of Act 7 of 1977 and ordered that the E.P. be proceeded with. The correctness of the order is assailed in this C.R.P.

Sri Madhava Reddy, learned Counsel for the petitioners, contends that the finding of the Executing Court that the petitioner-1st respondent is not a small farmer is incorrect, having regard to the evidence of P.Ws.1 and 2 and the same is liable to be set aside. Inasmuch as the finding that the petitioner-1st respondent is not a small farmer is the finding of fact based on evidence, it cannot be interfered with as this Court in its revisional jurisdiction cannot reappraise the evidence to arrive at a different conclusion. Therefore, this contention of the learned Counsel for the petitioners is rejected.

It is next contended that the Executing Court erred in law in not granting exemption under the proviso to Section 60(1)(c) C.P.C. Sri C. Ramachandra Raju, learned Counsel for the first respondent, on the other hand, contends that the proviso (c) to Section 60(1) C.P.C. is not absolute and it has no application where what is sought to be sold is the mortgaged property. Therefore, the executing Court has rightly overruled the objection.

Now the question that arises for consideration in this C.R.P. is: whether the proviso (c) to Section 60(1) C.P.C. Applies to the sale of the mortgaged property under the decree.

"60 PROPERTY LIABLE TO ATTACHMENT AND SALE IN EXECUTION OF DECREE:-

(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or Immovable belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

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

(a) xx xx xx

(b) xx xx xx

(c) houses and other buildings (with materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him"

From a perusal of the above section, it is clear that though the lands, houses and other buildings etc., are liable to attachment and sale in execution of the decree, the houses and other buildings (with materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him, are not liable to attachment or sale.

In K. Santha Kumari Vs. Suseela Devi, a Division Bench of this Court has considered the question as to whether a house belonging to an agriculturist is liable to be sold in execution of the decree on the basis of the mortgage created on the house by the agriculturist. The learned Judges held that the proviso to Section 60 was per se applicable to all decrees including decrees obtained on the strength of mortgages executed by agriculturists in respect of their houses. The prohibition contained in the proviso against the sale of an agriculturist''s house would not be said to be absolute and he could waive his right under the proviso. It was further held that the proviso (c) to Section 60(1) was not based on public policy and that it was intended to afford protection to an agriculturist from being deprived of a house to live in, and that the said proviso would not apply to the cases where the agriculturist had chosen to hypothecate his house and suffer decree in suit brought on the basis of the mortgage and in such circumstances it would be deemed that he had waived the benefit of proviso (c) to Section 60(1) C.P.C. It was further held that if the agriculturist did not raise the question of saleability of his house in the mortgage suit, he could not raise the plea at the stage of execution and that would be barred by the principle of res judicnta. The above judgment is binding on me.

In view of the above judgment the contention of the learned Counsel for the petitioners that having regard to the proviso (c) to Section 60(1) C.P.C. item No. 1 of E.P. Schedule could not be sold, cannot be accepted. I therefore do not find any error of law much less of jurisdiction in the order under revision.

The C.R.P. is dismissed but in the circumstances without costs.