V S VASUDEVAN Vs. FEDERAL BANK LTD

JUDGEMENT

(1.) Ext. P6 order passed by the execution court dismissing an application submitted by the petitioner, the 2nd judgment-debtor that his property be executed from sale on the ground that he is an agriculturist who is cultivating the property in question and is depending for the income derived from such cultivation for his livelihood is under challenge.

(2.) Heard both sides. Mr. Shoby K. Francis, learned Counsel for the petitioner submits that the learned Subordinate Judge did not grant an effective opportunity to the petitioner for adducing evidence for substantiating the contention that the petitioner's property is not liable to be sold. According to me, no useful purpose would have been served even if the petitioner had been permitted to adduce evidence to substantiate his case that he is an agriculturist. It is to be noticed that exemption which is given under Section 60(1)(c) of the Code of Civil Procedure is exemption from attachment and sale. In the instant case the decree under execution is a mortgage decree and as held by the Division Bench of this Court in Kochumariam v. K.V. Co., 1974 AIR(Ker) 78 Section 60(1)(c) does not have to do with mortgage decrees but deals only with attachments and sales pursuant to attachment. When there is a mortgage, there is no necessity for attachment either in execution or on the original side.

(3.) The petitioner has another difficulty. His case is that he is an agriculturist who is cultivating the property. What is exempted under Section 60(1)(c) is not the agricultural property of the agriculturist, instead it is the houses and other buildings under the ownership and occupation of the agriculturist and their sites together with materials. Agricultural properties as such are not exempted under Section 60(1)(c).