Komirineni Basavayya vs Official Receiver, West Godavari, Eluru

Sanjeeva Row Nayudu, J.—This appeal is directed against the judgment and order of the District Judge''s Court, West Godavari at Eluru dated 22-4-1957 in I. A. No. 1338 of 1956 in I. P. No. 19 of 1955 on the file of the said court.

This is an application filed by the insolvent to exempt some of the properties indicated in the schedule to the petition, from being sold by the Official Receiver. The property consists of two tiled houses, and two thatched sheds belonging to the insolvent, who is admittedly an agriculturist. In addition, two bulls and a she-buffalo are also included in the schedule. The learned District Judge exempted the thatched sheds from being sold by the Official Receiver, but refused to exempt the houses on the ground that the tiled houses are not exempt from sale, although the petitioner is actually residing in them.

The sample point for consideration is whether the property in question is exempt from being brought to sale by the Official Receiver. There is no doubt that these properties are exempt from an attachment u/s 60(1) provisos (b) and (c) of the CPC which are as follows:

"60(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, hundies, 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 in his behalf:

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

(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(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 and occupied by him;"

Under Clause (b) of the proviso extracted above, such cattle as may be necessary to earn his livelihood as an agriculturist are exempt from attachment and sale in execution of the decree. Similarly Clause (c) exempts 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 and occupied by him. It is not disputed that the tiled houses in question are in the occupation of the petitioner. Clause (c) exempts not only houses but also buildings. The expression ''house'' includes a tiled house and a ''building'' certainly includes a tiled house. I have therefore no doubt whatsoever that the properties included in the schedule to the petition which are admittedly the properties of an agriculturist and required by him and which are in his possession and enjoyment, are clearly exempt from attachment and sale u/s 60 of the Code of Civil Procedure.

4 The further question that falls to be determined is whether the proviso u/s 60 C. P. C. applies to proceedings in insolvency. A perusal of the Provincial Insolvency Act shows that there is no such Section as Section 60 CPC anywhere in the Act. On the other hand. Section 5(1) of the Provincial Insolvency Act defines the general powers of courts. It reads thus:--

"(1) Subject to the provisions of this Act, the Court, in regard to proceedings under this Act, shall have the same powers and shall follow the same procedure as it has and follows in the exercise of original civil jurisdiction.'''' Having regard to the above provision contained in Section 5 of the Insolvency Act, the Court is governed by the rules of Civil Procedure which apply to proceedings before the Insolvency Court in the same manner as a Civil Court is governed by the CPC whea exercising original civil jurisdiction. Section 2 Clause (2) of the Act provides:

"Words and expressions used in this Act and defined in the Code of Civil Procedure, 1908, and not hereinbefore defined shall have the same meaning as those respectively attributed to them by the said Code."

Having regard to these provisions, in the matter of attachment and sale of insolvent''s properties, the provisions applicable under the Provincial Insolvency Act must be regarded as materially the same as those of the Civil Procedure Code. Section 60, C. P. C. clearly applies to proceedings in insolvency as well. In thus I am supported by the decision of the Lahore High Court reported in Rahiman v. Nagar Mal AIR 1933 Lah 1010 wherein it was held that in the case of an agriculturist insolvent, according to the provisions of Section 60 CPC the house of an agriculturist does not vest in the Official Receiver and therefore he cannot sell property which does not vest in him. The exemptions contained in Section 60 CPC are based on reasonable and equitable grounds and consideration, and they are as much applicable to proceedings in execution of decrees of any civil court as to the proceedings by way of attachment and sale taken out by the Official Receiver in exercise of the powers vested in him under the Provincial Insolvency Act. The learned District Judge''s order therefore requires to be set aside as unsustainable.

This appeal is therefore allowed. The judgment and order of the learned District Judge are set aside and I. A. No. 1338 of 1956 is allowed with costs throughout.