Tejmal vs Mst. Varju and Another

Jagat Narayan, J.—This is a revision application by the decree-holder against an order of the Senior Civil Judge, Sirohi, holding that the attached property was not liable to attachment and sale in execution of his decree in view of proviso (c) to Section 60(1) C.P.C.

The facts of the case are these. One Uma took a loan from Tejmal for the recovery of which Tejmal brought a suit against him. During the pendency of the suit Uma died and his legal representatives namely his widow Smt. Varju. respondent No. 1 and his minor daughter Kumari Jatan, respondent No. 2, were impleaded as defendants and a decree was passed against them. In consequence of the decree a house belonging to Uma which was in the possession of respondents No. 1 and 2 was attached. They filed an obejection that the house was exempt from attachment u/s 60 C.P.C. on the ground that Smt. Varju was dependent for her maintenance on her wages as an agricultural labourer and she is supporting her minor daughter Kumari Jatan out of the same source of livelihood. The decree-holder disputed that the respondents were agriculturists within the meaning of Section 60 C.P.C. The court framed an issue whether the attached house was not liable to sale in execution of the decree. Both the parties led evidence. The executing court recorded a finding that Uma who was the original debtor was an agriculturist and as such the house was exempt from attachment and sale in execution of the decree. It is not disputed that this decision is erroneous because Uma was not the judgment-debtor. Respondents No. 1 and 2 were the judgment-debtors and the court has to find out whether or not they were agriculturists.

The decision in Suraj Bhan v. Krishna Behari ILR (1953) Raj. 759 on which the executing court relied is distinguishable on facts. In that case the decree was passed against the original debtor who was consequently the judgment-debtor. He was not an agriculturist. His legal representatives were agriculturists. It was held that they were not entitled to the protection under proviso (c) to Section 60(1) C.P.C. The decision in Dhani Ram v. Dist. Official Receiver AIR 1943 Lah 19 which was cited on behalf of the respondents before me is also distinguishable for the same reason.

The decision which is applicable is that in Baldev Singh v. Sher Singh AIR 1939 Lah 558 which was confirmed by the Division Bench in Sher Singh v. Baldev Shingh AIR 1940 Lah 320. It was held that the question whether the judgment-debtor is an agriculturist has to be decided with reference to the date of the attachment and whether the property is attachable or not has to be decided with reference to the situation on that date. A man might cease to be an agriculturist within the meaning of Section 60 when his property is attached, he would not longer be entitled to the protection u/s 60. Similarly, a man might become an agriculturist and his property might not be liable to attachment at the time when it is attached and it could not be argued that because at the date of the decree he was not an agriculturist therefore the property was liable to attachment. Hence when the property is attached when is in the possession of and owned by the legal representative who is a non-agriculturist the property is liable to attachment and sale on that date. It is beside the question to discover whether the original debtor was or was not an agriculturist whithin the meaning of Section 60.

The question which has therefore to be determined in the present case is whether Smt. Varju was an agriculturist on the date of attachment. In Seeli Tirupati and Others Vs. Bhupathiraju Janikamma and Others, it was held that an agricultural labourer is an agriculturist within the meaning of Section 60(1)(c) C.P.C. I am respectfully in agreement with that decision. It was held in Devara Hegde v. Vaikunt Subhaya AIR 1917 Bom. 253 that a judgment-debtor living solely by an agricultural labour but not owning any land as a tenant is an agriculturist on the following reasoning:

A person who earns his livelihood by tilling the soil can hardly be said not to be a professed cultivator of the land. I do not think that in ordinary parlance there is any difference in meaning between "an agricultural population'' & ''a population of agriculturists.'' If therefore a professed cultivator of the land earning his remuneration from another employer owns a house in which he lives he should be protected from the attachment of that house by reason of the provisions of Section 60(c)."

The above case was followed by a Bench of the Nagpur High Court in Gowardhandas v. Mohanlal AIR 1938 Nag. 366. The latter decision was referred to by their Lordships of the Supreme Court in Shrimant Appasaheb Tuljaram Desai and Others Vs. Bhalchandra Vithalrao Thube, But the decision was neither approved nor disapproved on this point as the question as to whether an agricultural labourer was an agriculturist did not arise for decision in that case.

I accordingly allow the revision application, set aside the order of the executing court and remand the case to it for decision in accordance with law on the evidence already recorded by it. The costs of the revision application shall abide the final result of objection.