GOWRAMMA Vs. BASAVAN GOUD

JUDGEMENT

(1.) The 1st appellant is the decree-holder, second appellant is the auctionpurchaser and the respondent is the judgment-debtor. The decree holder, in execution of a money decree which he had obtained against the judgment debtor got the properties of the latter including a house attached and and brought them to sale. The properties were sold on 4-8-1972, All the properties, viz a house and two lands were sold in one lot and purchased by the second appellant for a sum of Rs. 6,575. After the sale, the judgment-debtor filed an application under Or,21, R.90 CPC to set aside the sale. The learned Munsiff held that no fraud or material irregularity had been established. He also rejected the contention of the judgment-debtor that the house is not liable to be sold under S.60(l) (c) CPC. He accordingly dismissed I.A-II and confirmed the sale. On appeal the lower appellate Court agreed with the finding of the learned Munsiff that no fraud or material irregularity had been established in the publication or conduct of the sale. But it reversed the finding of the learned Munsiff on the interpretation of S.60(l)(c) CPC and came to the conclusion that the house could not be sold. It accordingly set aside the order of the learned Munsff on I.A.-II and set aside the sale and remanded the case to the execution Court.

(2.) It is contended by Mr. Achar, appearing for the appellants, that the judgment-debtor must be held to have been estopped from raising the plea under S.60 (l) (c) CPC. His contention is that the judgment-debtor had been served with the notice under Or.21, R.66 CPC but did not raise sueh an objection at any time prior to the, sale. Further, he urged that even if such a plea could be allowed to be urged by the judgment-debtor the house is not exempt from sale under S.60(l) (c) CPC and that the finding of the lower appellate Court in this regard is erroneous. He relied on the decisions in AIR 1969 AP 355(1), AIR 1960 AP 631(3) and ILR 1957 Bom. 403(2) in support of his first contention.

(3.) In Santha Kumari v. Suseela Devi AIR. 1969 AP. 355. a house belonging to an agriculturist had been mortgaged to the decree-holder who had obtained a mortgage decree. It was. held that the prohibition contained in S.60(1) (c), CPC is not based on grounds of public policy. Their Lordships referred to the absence of any prohibition of transfer of a residential house belonging to an agriculturist under S.60 .T.P. Act or elsewhere. They also, referred to the right of a mortgagee, in the case of a mortgage by conditional sale of a house belonging to an agriculturist, to file a suit and obtain a decree fof forecloure, and to a suit filed for specific performance by contract of sale executed by an agriculturist in respect of a house. They therefore came to the conclusion that the prohibition contained in S.60(l) (c) is not based on public policy, but is intended to afford protection to an agriculturist from being deprived of a house to live in. In Shaikh Ahmed v. Devram Kalyanji & Co.ILR. 1957 Bom.403 the judgment-debtor applied for exemption of his house from sale under S.60(l) (c) CPC "after the Court had passed an order for sale but before the sale was held. On the consideration of the facts of that case it was held that the judgment-debtor became entitled tp claim the exemption on the date of his application and that there was no material to show that he had become so entitled at an earlier stage of the execution proceeding. It was therefore held that the judgment-debtor was not precluded from urging this contention at that stage. It was also held that the judgment-debtor should apply at the earliest point of time after he became entitled to raise such an objection and that otherwise, his objection would be barred. In Raghava v. Kriahnayya AIR. 1960 AP. 631. a notice u/Or.21, R.66 CPC had been served on the judgment-debtor at the time of proclamation of sale, but he did not appear in answer to that notice. The property was brought to sale and was purchased by a third party who failed to make the necessary deposit and the property was ordered to be re-sold. At that juncture, the judgment debtor appeared and raised an objection to the sale of the property claiming exemption under S.60 (l) (c) CPC. While considering the principle of constructive res judicata, it was held that a party who is sought to be hit by the doctrine of res judicata should have notice of the question that is sought to be raised in the proceedings and should have an opportunity to put forward his objections, and that the judgment debtor cannot be required to raise an objection as to the saleability of the property in answer to a notice under Or.21, R 66 CPC since the. drawing up of the sale proclamation is purely a ministerial or administrative" matter and no judicial determination- is involved in such a procedure and the judgment debtor would have had no notice of the point to, be decided against him viz. as to the Liability of the property to be sold. It was therefore held that there was no scope for invoking the doctrine of res judicata in such a case following, the deicision in Shyama Kant v. Rambhajan AIR. 1939 PC. 74. . It was therefore held that the jodgment debtpr was entitled to raise tha plea at that stage. As against the view taken in Shantha Kumaris case (l) and Sheikh Ahmed's case (2) there are decisions which took a contrary view. In Kameshwar Singh v. KrishnanandSingh AIR. 1955 Pat. 423. it has been held that even though a judgment-debtor has waived all objections as to the irregularities in connection with the issue of a freshsale proclamation, he can still question the execution on the ground that the properties which were advertised for sale could not be sold being nonsaleable. It was held that the properties being not liable to be sold, the . executing Court had no jurisdiction to sell them and that therefore the doctrine of constructive res judicata does not apply. In Subramaniam v. Satyanadhan it was held that the agreement by a person getting a salary of Rs. 100 that the creditor may take a certain sum out of the salary is not enforceable in law, since the provisions of S.60 CPC are intended, tp give protection to persons in the position of the debtor in that case on grounds of public policy and not merely to confer a personal benefit upon them. In M & S M Rly. v. Rupchand which is also a case under S.60 (l) (i) CPC it was held that the, prohibition under S..60 CPC is based on the ground of public policy and that it is not open to the railway servant to contract himself out of such a prpvisipn or to waive its benefit and that the principle of waiver does not apply to the statutory prohibition based on public "policy. In Ram Naresh v. Ganesh Mistri a residential house of an agriculturist was attached before judgment in a suit to recover a certain amount. The suit was compromised and the agriculturist judgment-debtor agreed to allow the house to continue under attachment till the realisation of the decree. When the decree holder sought the sale of the house the judgment-debtor raised an objection contending that the house could not be sold in execution of the decree under S.60(l) (c) CPC It was held that even if the judgment debtor had stated in express terms that he was willing to get the house sold in execution of the decree, he cannot be pinned down to that statement, since there can be no estoppel against a statute.