GOWRANNA Vs. BASAVANA GOWD

JUDGEMENT

(1.) The 1st appellant is the decree-holder, second appellant is the auction-purchaser 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 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 Order 21, Rule 90, Civil Procedure Code 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 anable to be sold under Section 60(1)(c) of the Code of Civil Procedure. 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 Section 60(1)(c) of the Code of Civil Procedure, and came to the conclusion that the house could not be sold. It accordingly set aside the order of the learned Munsiff 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 Section 60(1)(c). Civil Procedure Code. His contention is that the judgment-debtor had been served with the notice under Order 21, Rule 66, Civil Procedure Code but did not raise such 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 judg-ment-debtor, the house is not exempt from sale under Section 60(1)(c), Civil Procedure Code and that the finding of the Lower Appellate Court in this regard is erroneous. He relied on the decisions in AIR1969 AP 355 , AIR1960 AP 631 and ILR (1957) Bom 403 in support of his first contention.

(3.) In Santha Kumari v. Suseela Devi, AIR1969 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 Section 60(1)(c), Civil Procedure Code 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 Section 60 of the Transfer of Property 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 for foreclosure, 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 Section 60(1)(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 Ahmad v. Devram Kalyanji and Co., ILR (1957) Bom 403 the judgment-debtor applied for exemption of his house from sale under Section 60(1)(c), Civil Procedure Code 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 to 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 Reddi v. Krishnayya. AIR1960 AP 631 a notice under Order 21, Rule 66, Civil Procedure Code 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 Section 60(1)(c), Civil Procedure Code. 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 Order 21, Rule 66, Civil Procedure Code 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 decision in Shyama Kant v. Rambhajan, AIR 1939 FC 74. It was therefore held that the judgment-debtor was entitled to raise the plea at that stage. As against the view taken in AIR1969 AP 355 and ILR (1957) Bom 403, there are decisions which took a contrary view. In Kameshwar Singh v. Krishnanand Singh, AIR1955 Pat 423 , 1955 (3 )BLJR273 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 fresh sale proclamation, he can still question the execution on the ground that the properties which were advertised for sale could not be sold being non-saleable. 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. Satyanadham (AIR 1942 Mad 391) 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 Section 60, Civil Procedure Code are intended to 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. and S. M. Railway v. Rupchand, AIR1950 Bom 155 which is also a case under Section 60(1)(i), Civil Procedure Code it was held that the prohibition under Section 60, Civil Procedure Code 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 provision or to waive its benefit and that the principle of waiver does not apply to the statutory prohibihtion based on public policy. In Ram Naresh v. Ganesh Mistri, AIR1952 All 680 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 Section 60(1)(c), Civil Procedure Code. 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.