Esthappanose vs Devamatha Kuries and Finance (P) Ltd.

Paripoornan, J.—The third Defendant (third judgment debtor) in O.S. No. 552 of 1982, Additional Sub-Court, North Paravur, is the revision Petitioner. The Respondent herein is the decree holder-Plaintiff in the suit. A decree was passed against the revision Petitioner and others for recovery of more than Rs. 38,000. The decree holder prayed for realisation of the decree debt by attachment and sale of the property specified in the schedule. After attachment, notice under Order XXI Rule 66 of the CPC was issued. Then the third judgment debtor filed an objection stating that he is an agriculturist, and claimed exemption u/s 60(1)(c) of CPC against attachment and sale of the property specified in the schedule.

The third judgment debtor was examined as P.W. 1. The Chairman of the decree holder finance company was examined as D.W. 1. After evaluating the evidence in the case, the Court below, by order dated 6th April 1992, held that the claim made by the third judgment debtor, u/s 60(1)(c), is unsustainable. His objections were overruled. It was held that the property specified in the schedule is liable to be sold. The objection raised against the attachment by the revision Petitioner was negatived. The third judgment debtor has come up in revision.

I heard Counsel.

Counsel for the revision Petitioner submitted that the revision Petitioner is an agriculturist and is depending upon the income derived from the scheduled property, for his livelihood. The Court below was in error in holding that the revision Petitioner is not entitled to the relief u/s 60(1)(c) Code of Civil Procedure. On the other hand, Counsel for the Respondent submitted that the burden of proof is on the judgment debtor to substantiate that he is entitled to the relief u/s 60(1)(c) read with Explanation V of the Code of Civil Procedure, and in this case, it has not been discharged. Admittedly, the judgment debtor is a pensioner, getting more than Rs. 500 per mensem. The decree schedule property is 41 cents, out of which 11 cents was acquired under the Land Acquisition Act. The balance is 30 cents. There is a building therein, besides a few trees. As P.W. 1, the revision Petitioner has not cared to mention the total income derived from the property. It may be true that the revision Petitioner is in receipt of income from agricultural operations. But that cannot be said to be his main income or chief/main source of livelihood. The revision Petitioner is not entitled to the relief u/s 60(1)(c) Code of Civil Procedure. So submits the Counsel for the Respondent.

On hearing the rival pleas urged before me, I am of the view that the order passed by the Court below does net merit interference in revision. It is true that the Court below found that the revision Petitioner is having a bakery business. As P.W. 1, the revision Petitioner admitted that he executed the chitty bond styling himself as the proprietor of Best Bakery. In the leading question, put to him in the cross examination, as to whether the revision Petitioner has executed the bond as Proprietor of the Best Bakery, his only reply was that he has signed in the chitty bond. He did not deny that he has signed the chitty bond as proprietor of the Best Bakery. Later, in the cross examination, he has, stated that he is not conducting the bakery. I am of the view that the evidence of P.W.1, taken as a whole, points out that the revision Petitioner was evasive and was not prepared to contradict that he executed the chitty bond as proprietor of the bakery business: Even otherwise, when once he himself has executed the document as proprietor of a bakery business, normally, the said statement should prevail. There is nothing on record to offset the normal presumption, flowing from such admission contained in the document executed by the revision Petitioner himself. The Court below was justified in holding that the materials on record indicate that the revision Petitioner is having bakery business. The said finding is based on evidence.

It is also in evidence that the revision Petitioner is a pensioner. He is getting more than Rs. 500 per mensem. He is a retired Government servant Section 60(1)(c) CPC read with Explanation 5 provides as follows:

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, viz. 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, movable 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 off his behalf:

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

(a) * * * (b) * * * (c) houses and other buildings (with the 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.

Explanation V: For the purposes of this proviso, the expression ''agriculturist'' means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer.

Clause (c) provides that houses and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist and occupied by him, shall not be liable to attachment or sale.

The expression ''agriculturist'' means, a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer. The burden to prove that the land and the building sought to be attached is entitled to exemption, is on the revision Petitioner. As P.W. 1, he has admitted that he has got a pension of more than Rs. 500. He has also stated that he is carrying on agricultural operations in the property sought to be attached an extent of 30 cents. According to him, that is the only source of his livelihood. But, as P.W. 1, he has not stated the total income derived from the agricultural operation, nor has he demonstrated that the income from the agricultural operations exceeds the pension he receives. In other words, there is no material to show that the income from the agricultural operation is substantial or that the revision Petitioner is depending upon the agricultural income for his livelihood. The totality of the facts and circumstances in the case show that the revision Petitioner is not chiefly or mainly depending upon the income from the agricultural operations for his livelihood. He is not an agriculturist, coming within Section 60(l)(c) of Code of Civil Procedure.

In P.V. Mathew v. Bank of Cochin Ltd. 1982 KLT 274 at 280, M.P. Merion, J. observed thus:

...As held by the Supreme Court in Shrimant Appasaheb Tuljaram Desai and Others Vs. Bhalchandra Vithalrao Thube, an ''agriculturist'' within the meaning of proviso, (c) is a person depending for his maintenance on tilling the soil and who is unable to maintain himself otherwise. If he has other substantial income, he does not qualify for the exemption. The Petitioner herein did not adduce any evidence to show that he was depending for his maintenance on agricultural operations. Obviously, he had other sources of income....

The observations are apposite here. The revision Petitioner has other substantial income, by way of pension exceeding Rs. 500 per mensem. He is not mainly depending on the income from agricultural operations, for his livelihood. There is no data or figure available with regard to the income from the agricultural operations, much less to show that the revision Petitioner is depending upon the income from agriculture for his livelihood. The burden of proof is on the revision Petitioner to establish the essential ingredients envisaged by Section 60(1)(c) read with Explanation V. The burden is on the judgment debtor to establish facts, clearly to bring his case within Section 60(1)(c) read with Explanation v. see AIR 1936 532 (Lahore) . As stated in Prabhu Dayal Vs. Ram Nik Lal and Another, , in order to decide whether the plea of exemption u/s 60(1)(c) read with Explanation v. can be extended to a person, the two fundamental tesits are:

(1) the prepondering source of his income and livelihood; and

(2) devotion of the major part of his time, labour, attention and skill for cultivation.

If the above tests are applied, there is no material, in this case, to show that the prepondering source of the revision Petitioner''s Income and livelihood is from agriculture, nor is there any material to show that the revision Petitioner devotes major part of his time, labour or attention for cultivation. As P.W. 1, the revision Petitioner has not given even formal evidence on the above aspects. The evidence of P.W. 1, as a whole, will go to show that the revision Petitioner gets some income from the trees available in the property of 30 cents. As to what is the quantum of the said income is anybody''s guess. As to whether the revision Petitioner spends major portion of his time, labour and attention for cultivation is also a matter on which the revision Petitioner has not let in any evidence. The revision Petitioner has failed to discharge the burden cast on him, entitling him to the benefit of Section 60(1)(c) read with Explanation v. of Code of Civil Procedure. So, the claim for exemption from attachment and sale of the scheduled property was rightly rejected by the Court below.

I hold that the order of the Court below dated 6th April 1992 does not suffer from any jurisdictional error or illegality, to merit interference u/s 115 of the Code of Civil Procedure. The revision is frivolous and it is dismissed with costs, including Counsel fee of Rs, 1,000.

The suit is of the year 1982. The decree was passed on 10th August 1984. The execution petition was filed in 1936. A decade has parsed by and even now,, the judgment debtor'' is successfully evading realisation of the fruits of the decree obtained by the decree holder. The Court below will proceed with the execution with all speed, bearing in mind the above factors. The matter is posted in the Court below, for appearance of parties, on 16th September 1992.

The revision petition is dismissed with costs, as stated above.