LALITHAMMA Vs. RAMACHANDRA IYER

JUDGEMENT

(1.) JUDGMENT-debtor in a suit for realisation of money due to the respondent is the petitioner. The revision petition arises in execution and is directed against an order of the lower court by which it dismissed an application filed by the petitioner for staying sale of property on the ground that she is an agriculturist entitled to benefit of proviso (c) to S. 60 (1) of the CPC. The decree in the suit was passed on 30th June, 1983. The decree was one for realisation of amounts due to the respondents from the petitioner personally and from out of her properties. The decree-holder filed petition for recovery of the money by sale of the properties belonging to the petitioner. It would appear that this property had been attached before judgment. After service of notice on the petitioner, the court sealed the proclamation of sale on 5-7-1984 and ordered the sale to take place on 8-8-1984. That order for sale was not challenged and there was also no objection raised to the saleability of the property at that stage. The property in question is stated to be a small piece of land with a residential building thereon in Trivandrum Municipal limits in which the petitioner is stated to be residing. The sale posted to 8-8-1984 stood, adjourned from time to time and it was thereafter that the petitioner came forward with this application EA No. 99 of 1985 for staying the sale claiming the benefits of proviso (c) to S. 60 (1) of the C. P. C. as mentioned earlier.

(2.) THE lower court dismissed the application holding that the petitioner was barred on the principle of constructive res judicata from raising the objection of non-saleability under proviso (c) to S. 60 (1) at this stage as she had not raised this objection at any time before the order for sale was made.

(3.) LOOKING at it either way the petitioner is not entitled to object to the sale of the property which has been ordered as early as on 5-7-1984. This is apart from the fact that the question whether she is an agriculturist entitled to the benefit of proviso (c) to S. 60 (1) is itself in dispute. That is a matter on which I am not expressing any opinion since the lower court has not gone into the matter in the view that it took about the petitioner's entitlement to raise the objection in question at this late stage. There is no merit in the revision petition. It is accordingly dismissed with costs. . .