KOCHUMARIAM Vs. KISHEMA VILASAM CO

JUDGEMENT

(1.) These are execution appeals arising respectively from O. S. Nos. 14 and 15 of 1969 of the Subordinate Judge's Court, Ernakulam. A common question arises in these appeals and the question is whether S.60(1) proviso (c) of the Code of Civil Procedure would apply to mortgage decrees. S.60(1) CPC. is in these terms:

(2.) The question is not free from difficulty and we were taken through a long line of decisions for and against the above view. We have examined the decisions carefully and we think that the weight of judicial opinion is in favour of the view that the proviso cannot apply to mortgage decrees where there is no need for attachment. The question seems to have come up for judicial consideration atleast from the year 1879 in Bhagwandas v. Hathibhai ((1879) 4 Bom. 25) where it was held that 'S. 266 CPC. (corresponding to the present S.60(1)(c) does not prohibit the sale of property specifically mortgaged albeit that the property be materials of a house belonging to or occupied by an agriculturist.' In the judgment of the Bench it was observed:

(3.) In Chittur Mal v. Mt. Ram Devi ( AIR 1935 Lah. 164 ), which is a Bench decision it was laid down that 'there is nothing in S.60 C.P.C., to prevent an agriculturist voluntarily selling or otherwise alienating his house, and therefore, where an agriculturist voluntarily agreed to mortgage his house, the section had no application and that the house was liable to sale in execution of the decree. The Lahore High Court in Allah Baksh v. L. Chet Ram ( AIR 1945 Lah. 123 ) -- Full Bench of five judges -- reviewing all authorities upto that date held the same view. Learned Harries, C. J. speaking for the Bench observed:--