Matam Basayya vs Hanumantha Reddi and Another

Horwill, J.—The question in this appeal is whether the sale of the appellant''s house in execution of a money decree against him can be set

aside on the ground that u/s 60(1)(c), Civil P. C, a house in the occupation of an agriculturist is exempted from attachment. The lower Court held

that in view of the conduct of the appellant in not claiming his rights on two prior applications, first at the time when the property was attached, and

secondly when the property was brought to sale, be cannot raise the objection now after the property has been brought to sale.

There can be no doubt that if a person during the course of execution proceedings does not raise an objection to the sale of property which, if

raised, would prevent the property from being brought to sale, he is debarred by the principle of constructive res judicata from raising that same

objection either in subsequent proceedings or at a subsequent stage in the same execution proceedings. The learned advocate for the appellant,

however, seeks to distinguish this ease by contending that there is an absolute bar laid down in Section 60 (1) (c), Civil P.C., based on public

policy which renders the sale of any house occupied by an agriculturist void. He has quoted Aidal Singh and Others Vs. Khazan Singh and Others,

in support of his contention. That was a case in which the sons of an agriculturist in a subsequent suit con-tended that the sale of an ancestral house

in which their father had been living and which had been brought to sale in execution of a decree against the father was absolutely void. The learned

Judges held that as the sons had an independent cause of action they could bring a suit. They further held that in any event there was an absolute

prohibition u/s 60 (1) (c) against the sale of an agriculturist''s house and that the sale therefore was void. The same questions, however, arose in a

subsequent case before a Full Bench of the same High Court in Thakur Din and Another Vs. Sita Ram and Another, and the learned Judges on

both points disagreed with the learned Judges in Aidal Singh and Others Vs. Khazan Singh and Others, . They held that when the house was sold,

the father represented not only himself but also his sons; and also that as the father had not raised the objection at the first opportunity, he and his

sons were debarred by the principle of constructive res judicata from raising the point in subsequent proceedings.

It is said that there is no direct decision on this question in this High Court; but a very similar question arose in Somasundaram v. Kondayya AIR

1926 Mad. 12 in which was raised an objection to the sale of an inalienable inam that was not raised during the execution proceedings, with the

result that the inam was sold. One of the learned Judges, Venkatasubba Rao J. said:

It was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff''s suit should on that ground be dismissed. I cannot

follow this contention. As I have said, we are not here concerned with the true, facts of the case but only with the result of certain proceedings. Is

the defendant to be permitted to plead that the land was inalienable at the time of the Court sale? The effect of the order confirming the sale is that

the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property can be sold.

We consider this principle to be applicable to the case bow under consideration. If it was obvious to the executing Court that the decree-holder

was seeking to bring to sale a house in the occupation of an agriculturist, there might be a ground for argument that the Court acted without

jurisdiction in selling it; but the question whether a particular house is a house in the occupation of an agriculturist is a question of fact. If there is

nothing before the Court to show that the house sought to be sold is a house in the occupation of an agriculturist, it cannot be said that the Court

acted without jurisdiction in selling that house The learned advocate for the appellant refers to Ramakrishnamma v. Venkatasubbiah AIR 1935

Mad 252, in which, he says, a different view of this question was taken. The learned Judges were there primarily concerned with the question

whether a dasabandham service inam was absolutely inalienable; but at the end of their judgment they said:

We must hold that lands burdened with a dasabandham service, which is a service of a public nature, are inalienable as being against public policy

and, being inalienable, cannot be sold in execution of a decree against an inamdar. The lower appellate Court also found that estoppel cannot be

relied upon to defeat a prohibition in law on the ground of public policy. No argument to the contrary was addressed to us by the appellant upon

this point and that question therefore does not arise in this appeal.

The question whether the failure of the judgment-debtor to raise an objection before the sale would operate as res judicata against him if the

same point were raised after the sale, did not come up for consideration. Even if, however, it be considered that Ramakrishnamma v.

Venkatasubbiah AIR 1935 Mad 252 is an authority for the position that the sale of a dasabandham inam is absolutely void, a dasabandham inam

can be distinguished from an agriculturist''s house because, as the learned Judges point out in that case, it is a matter of public policy not to permit

the sale of an inalienable inam; for the result would be that the service would become severed from the land; but we cannot find the same public

policy behind the enactment in Section 60 (1) (c), Civil P.C. That section was undoubtedly enacted in order to protect agriculturists, in order that

they might pursue their avocation despite the fact that there were decrees against them; but the protection can be waived by the agriculturists. The

learned District Judge has quoted cases in his judgment in which it was laid down that an agriculturist can waive his right u/s 60, Civil P.C.; and it is

not denied by the learned advocate for the appellant that he can do so. If an agriculturist can waive his right u/s 60, then it seems to us to logically

follow that there cannot be any absolute prohibition against the sale of an agriculturist''s house and that there is therefore no bar to the application

of the principle of constructive res judicata. More-over, the fact that Section 60, Civil P.C., prohibits only the attachment of an agriculturist''s house

and does not prevent an agriculturist from selling his house privately if he so wishes, is an indication that there is no public policy against the

alienation of an agriculturist''s house. The appeal fails and is dismissed with costs.