J. Rajamoni vs V. Burnabas

G. Rajasuria, J.—This Civil Revision Petition has been filed to get set aside the order and decreetal order dated 26.06.2012 passed in E.P.

No. 54 of 2011 in O.S. No. 145 of 2006 on the file of the Subordinate Judge, Padmanabhapuram. The learned Counsel for the revision

petitioner/judgment debtor would echo the cri de coeur and the heart burns of his client, the gist and kernel of it, would run thus:

The lower Court simply ignoring Section 60(1)(c) of the Code of Civil Procedure, ordered for sale of the property concerned. It is an admitted

fact that the judgment debtor is an agriculturist and virtually he is an agricultural labourer and his dwelling house under his occupation, cannot be

attached and brought for sale, However, the respondent/decree holder filed E.P. No. 54 of 2011 for executing the final decree passed, based on

the mortgage concerning such property. Once there Is a clear provision u/s 60(1)(c) of the Code of Civil Procedure, the question of bringing the

property for sale would not arise under the pretext of executing the mortgage decree concerning it.

In support of his submissions, the learned Counsel for the revision petitioner/ judgment debtor, would also cite the following decisions:

(i) Kiran Bala Vs. Surinder Kumar,

(ii) Dharman Vs. Chinnathambi,

Whereas the learned Counsel for the respondent/decree holder would pyramid his argument, the nitty-gritty of it, would run thus:

In the case of money decree, if the decree holder seeks to attach the property covered u/s 60(1)(c) of the Code of Civil Procedure, then the

question of raising objection, would arise and that embargo would be operative, but on the other hand, in this case, the preliminary decree as well

as final decree were passed based on mortgage and it is clear in the final decree itself that on non-discharge of the decreetal amount, the property

mortgaged has to be sold in public auction. When such is the legal position, there cannot be any embargo for the lower Court to proceed further.

He would also place reliance on the decision of this Court in A. Nabisa Beevi Vs. The Manager, Canara Bank, Nagarcoil,

The point for consideration is as to whether the lower Court was justified in proceeding further with the E.P. No. 54 of 2011 for sale of the

mortgaged property as per the final decree passed by the lower Court based on mortgage of the property concerned?

The Point:

Section 60 (i)(c) of the Code of Civil Procedure, is extracted hereunder for ready reference:

Section 60(1)(c):

Section 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 immoveable 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 behalf, 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:-

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(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;

No doubt, a plain reading of the aforesaid provision of law would indicate and exemplify that the property cannot be brought for sale if the

house is under the occupation and ownership of the agriculturalist or agricultural labourer. However, there is nothing to indicate and display that

such an agricultural labourer cannot mortgage or sale his own property. No part of the statute should be rendered otiose, is a trite proposition of

law. Even though u/s 60(1)(c) of the Code of Civil Procedure, it is mandated as above, yet Order XXXIV of the CPC contemplates the method

and manner of passing preliminary decree and final decree based on mortgage. Over and above that, the Transfer of Property Act, 1882, under

Chapter IV deals with the mortgages. There is no embargo for an agriculturalist who is in occupation of his property including his house to

mortgage and raise money. If it is taken that Section 60(1)(c) of the Code of Civil Procedure, is an embargo for the mortgagee to bring such

mortgaged property for sale, then that would amount to a clog or obstacle over the ownership of the said agriculturalist over his own property. The

object of the legislators in passing Section 60(1)(c) of the CPC is quite clear. A person who obtained a money decree of his own accord, should

not harass the agriculturalist by bringing such agriculturalist''s house for sale. But, on the other hand, the law does not envisage that the

agriculturalist/agricultural labourer who wants to improve his income, should not sell or mortgage such property and that fact should not be lost

sight of.

The decision of this Court in A. Nabisa Beevi Vs. The Manager, Canara Bank, Nagarcoil, would clearly highlight and disambiguate that Section

60(1)(c) of the Code of Civil Procedure, is not an embargo for bringing the mortgaged property for sale.

The other two decisions cited supra and relied on by the learned Counsel for the revision petitioner are not relating to the mortgaged property

and as such, those decisions are not applicable to the facts and circumstances of this case.

Wherefore, I am of the view that there is no perversity or illegality in the order passed by the lower Court. The point is answered accordingly.

In the result, this Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs. On hearing

this order pronounced, the learned Counsel for the revision petitioner would make an extempore submission that the suit transaction emerged out

of some family dispute and if at least sufficient time is given, the revision petitioner/judgment debtor would make arrangements for discharge of the

mortgage debt.

Whereas the learned Counsel for the respondent/ decree holder would submit that it is open for the revision petitioner/judgment debtor to

approach the lower Court for getting time to discharge the decreetal amount.

Wherefore, I would like to observe that it is open to the revision petitioner/judgment debtor to petition the lower Court seeking time to discharge

the decreetal amount, whereupon the lower Court shall consider the same leniently as per law.