JAI JAI RAM Vs. SMT. LAKSHMI DEVI

JUDGEMENT

(1.) This an appeal by a judgment-debtor whose objection against the attachment and sale of his house in execution of a decree obtained against him by the respondent has been dismissed by the courts below. In a previous execution proceeding the house in dispute had been attached in execution of the respondent's decree and the appellant had objected under Sec. 47, C.P.C. contending that he was an agriculturist and occupied the house as an agriculturist and that consequently it was exempt from attachment and sale in execution of the decree. The objection had been allowed and an appeal had been filed by the respondent. In that appeal a compromise had been arrived at between the parties on 18-12-1954, the gist of which was as follows:- The judgment-debtor will satisfy the decree in annual instalments of Rs. 200. If he failed to pay any instalment the whole decretal amount will become recoverable in one instalment and the house in dispute and other attached property will be auctioned. In that event the judgment-debtor's objection under Sec. 60, C.P.C. will be deemed to have been rejected and it will not be open to him to file another objection. So long as the whole decree was not satisfied the house and other attached property will remain attached.

(2.) The appeal had been decided in terms of the compromise. The judgment-debtor failed to carry out the terms of the compromise and the respondent applied for execution of the decree again and proceeded against the house. The judgment-debtor filed an objection again under Sec. 60, C.P.C. and it was resisted by the respondent decree-holder on the ground that it was barred by res judicata and estoppel. The lower appellate court rejected the judgment-debtor's objection and hence this second appeal by him. The appeal came up for hearing before one of us, who on account of a conflict between two decisions of this Court, Mahadeo Agrahari Vs. Dhaukal Mal, AIR 1946 Allahabad 432 and Ram Naresh Vs. Ganesh Misra, AIR 1932 Allahabad 680 = 1932 A.L.J. 624 referred the appeal to a larger bench.

(3.) Sec. 60(1) (c), C.P.C. lays down that "houses and other buildings . . . belonging to an agriculturist and occupied by him" are not "liable to attachment and sale in execution of a decree." Whether a person is an agriculturist or not and whether a house belongs to an agriculturist or I not and is occupied by him or not depend upon the evidence; by looking at a person one cannot say that he is or is not an agriculturist, and, similarly, by looking at a house one cannot say that it belongs to an agriculturist or that it is occupied by him. These are not matters which appear on the face of the person or the house. It follows that whether a house is liable to attachment and sale or not depends upon facts. Facts are to be proved in a court of law by means of evidence and evidence is to be produced by a party upon whom rests the onus of proving or disproving a fact in issue. A fact in issue arises when a material fact is asserted by a party and denied by the other. Consequently when a house exempt from attachment and sale under Sec. 60 is attached and sold a person must first claim that it belongs to an agriculturist and was occupied by him and then lead evidence, if his claim is resisted by the other party, and then the court will decide whether the house belongs to an agriculturist and was occupied by him or not, If it answers the question in the affirmative it will uphold the claim and release it from attachment. A house, therefore, though belonging to an agriculturist and occupied by him, may, in practice, be attached and sold in execution of a decree notwithstanding the bar imposed by Sec. 60. It may be attached and sold by a decree-holder, who denies that it belongs to an agriculturist and is occupied by him and, if the judgment-debtor does not file an objection against the attachment and sale, or does not produce sufficient and convincing evidence in support of the objection, the attachment and sale will be maintained by the executing court, though in reality it was exempt from attachment and sale. If a judgment-debtor is estopped by law from filing an objection against the attachment and sale of a house occupied by him as an agriculturist, the executing court will sell the property and confirm the sale. Similarly if there is a previous decision to the effect that a house does not belong to an agriculturist and is not occupied by him it will be attached and sold in execution of a decree even though in fact it belongs to and is occupied by an agriculturist if the decision operates as res fudicata and prevents the executing court from deciding whether it belongs to and is occupied by an agriculturist or not. In Uzir Biswas Vs. Haradeb Das, AIR 1920 Calcutta 424 Chatterjea and Panton, JJ. held that if a plaintiff and the defendant compromise a suit, the defendant agreeing that the decree passed in the plaintiff's favour would be realisable from a house occupied by him as an agriculturist, and a decree on the basis of the compromise is passed, the defendant is estopped from contending, when the decree-holder proceeds in execution of the decree against the house, that under Sec. 60, C.P.C. it is not liable to be attached and sold in execution of the decree. In Ganga Bishun Ram Vs. Jagmohan Ram, A.I.R. 1927 Pat., 233 a compromise entered into by a defendant agreeing to give the house occupied by him as an agriculturist as security for the amount of the compromise decree was held to estop him from contending in execution that it was not attachable and saleable. In the case of Mahadeo Agrahari (supra) Pathak, J. approved of these two decisions. The facts in that case were that in a proceeding under the Agriculturist's Relief Act the judgment-debtor made a statement agreeing to the continuance of the attachment of his house and to its sale in the event of default on his part to pay the decretal amount and the decree-holder made a statement admitting that the judgment-debtor was an agriculturist. Thereupon the Court made. an order under Sec. 5 of the Agriculturist's Relief Act granting instalments to the judgment-debtor and directing that the house would "remain attached and charged till realisation." The question arose whether the house could be sold in execution of that decree, notwithstanding the provisions of Sec, 60 (1) (c), and was the judgment-debtor estopped by his earlier agreement that it could be sold in execution of the decree. It was held that the judgment-debtor was bound by the consent order passed on the application under the Agriculturists's Relief Act and was also estopped from contending that the house was exempt from auction under Sec. 60(1) (c). Pathak, J. observed at page 434:-