K SANTHA KUMARI Vs. SUSEELA DEVI

JUDGEMENT

(1.) The only question that falls to be considered in this civil revision petition is as to whether a house belonging to an agriculturist is liable to be sold in execution of a decree obtained on the basis of a mortgage of that house, made by the agriculturist.

(2.) The respondent obtained a mortgage decree against the petitioner in O. S. 4/61 on the file of the Munsif Kollapur, and thereafter applied to that Court, in E. P. 28/61 for sale of the hypothecate consisting of a house. The petitioner thereupon made a part-payment to the respondent and was permitted by the Court, with the consent of the latter, to pay the balance in instalments. As she committed default in payment, the decree-holder once again applied for sale of the house in E. P. 14/64. On receipt of the notice of sale, the petitioner filed E. A. 17/64, out of which this revision petition arose, for dismissal of the execution petition on the ground that the debt covered by the decree became extinguished under Sec. 16 of the Hyderabad Agricultural Debtors Relief Act and that her house is, in any view not liable for sale in view of Clause (c) of the proviso to Section 60 (1) Civil P. C. as she is an agriculturist and has all along been using that house both for her residence as well as storage of agricultural produce. This petition was opposed by the respondent who filed counter contending that the petitioner is not an agriculturist, that it is not correct to say that the debt became extinguished under Section 16 of the Hyderabad Agricultural Debtors Relief Act, that she is likewise not entitled to invoke to her aid Sec. 60 (1) (c) Civil P. C. as it is inapplicable to mortgage decrees, that she should in any view be deemed to have waived the benefit of the protection, if any, afforded by Section 60 (1) (c) by voluntarily creating a mortgage over the house and that she is also barred from questioning the executability of the decree by sale of the hypothecate as she did not raise his objection either in the suit or in the earlier E. P. 28/61. The learned Munsif found that the petitioner is an agriculturist but negativated her contention that the debt became extinguished under Sec. 16 of the Hyderabad Agricultural Debtors Relief Act. On the other question arising in the case, held that Sec. 60 Civil P. C. has no application to mortgage decrees, that the petitioner is not entitled to claim the exemption as she should be deemed to have waived the "privilege" when she created a mortgage over the house and that she is in any view precluded from pleading Section 60 (1) (c). Civil P. C., as a bar to the proposed sale of her house by constructive res judicata as she failed to raise the objection either in the suit or in the earlier execution petition 28/61. He accordingly dismissed the petition with costs. Aggrieved by this decision, the judgment-debtor has preferred this revision petition.

(3.) Our learned brother, Venkatesam, J., before whom this petition came up for hearing in the first instance, referred it to the Bench having regard to the fact that "there is no decision of a single Judge or a Bench of this Court on this point though there are conflicting decisions of other High Courts" and that