VASANTHAKUMARI Vs. RAICHAL BANITTA

JUDGEMENT

(1.) The petitioner is the judgment debtor in E.P.No.51 of 2008 in O.S.No.695 of 1997 on the file of the Principal Munsiff Court, Kollam. Decree executed in the above suit is one for money, and the respondent is the decree holder. At the trial stage, 101/2 cents of property, which on actual measurement, is stated to be having only nine cents, allegedly belonging to the judgment debtor, had been attached in the execution proceedings. Steps were taken for sale of that property. Petitioner/ judgment debtor claiming to be entitled to the protection under Section 60(1)(c) of the Code of Civil Procedure, as being a prawn pealing worker, contended that the attached property belong to her and her minor daughter jointly under Ext.P1 deed and she has got absolute right over one half of that property, 4.5 cents comprising the hut under her occupation, and the rest of the property, the remaining 4.5 cents, belong to her minor daughter. The property claimed by her, 4.5 cents with the building, is not liable to be attached as she is an agriculturist in occupation of the hut situated therein and the rest of the property remaining 4.5 cents also cannot be proceeded as it belongs to her minor daughter was her case. The respondent/ decree holder resisted that application filing Ext.P5 objection. Claim of the judgment debtor that she is entitled to the exemption under Section 60(1)(c) of the C.P.C. from attachment of the building under her occupation was disputed by the decree holder contending that in the trial side, she had admitted that she was doing marine product business in the fishing harbour. Though the property had been attached during trial, there was no challenge on the basis of the exemption now canvassed was the further objection of the decree holder. The learned Munsiff, after appreciating the materials produced and hearing the counsel on both sides, negatived the claim of the judgment debtor for exemption under Section 60(1)(c) of the C.P.C. vide Ext.P7 order. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

(2.) I heard the counsel on both sides. The learned Munsiff has not appreciated the materials in the proper perspective with reference to the statutory prescription covered by Section 60(1)(c) of the C.P.C., and in fact, the claim of the judgment debtor as an agriculturist seeking exemption of the building in her occupation and its appurtenant premises from attachment was found against for reasons wholly unsustainable under law, is the submission of the learned counsel. The reason set out in Ext.P7 order that the judgment debtor being a member of the Mathsya Thozhilali Kshemanithi Board and having conceded in her evidence that she and her husband are depending on the income from the fishing harbour, and further with no evidence to show that she is carrying out any agricultural activity in the attached property, is disentitled her to claim exemption as an agriculturist, according to the learned counsel is a misreading of the provision covered by Section 60(1)(c) of the C.P.C., and further, violating the spirit and object covered by that rule. The learned counsel appearing for the decree holder contended that no interference with Ext.P7 order passed by the learned Munsiff, in the given facts of the case and also on the principles of law applicable, is called for. Reliance is also placed by the learned counsel in Thankavelu v. Ramesh Babu, 2007 4 ILR(Ker) 234 to contend that a self employed labourer like the present petitioner/judgment debtor cannot be considered as a labourer or an agriculturist for the purpose of Section 60(1)(c) of the C.P.C., and so much so, she is not entitled to the exemption from attachment of the building in her occupation as provided under that rule.

(3.) Perusing Ext.P7 order with reference to the submissions made by the counsel on both sides and also the exhibits tendered with the writ petition, I find the issue posed for consideration as to whether the judgment debtor, a prawn pealing worker, is entitled to the exemption of her house/hut with the appurtenant premises thereto, as provided under Section 60(1)(c) of C.P.C., has not been examined by the learned Munsiff in the correct perspective and that has no doubt resulted in forming of wrong conclusion.