BHOLA NATH Vs. MUSAMMAT KISHORI

JUDGEMENT

(1.) This appeal arises out of a suit for sale on a mortgage. The property consisted of a house, and it has been found that the mortgagors to whom the house belonged were agriculturists. Both the courts below have dismissed the suit on the strength of Section 60 of the Code of Civil Procedure.

(2.) It is to be borne in mind that it is not found that the house in question was an appurtenance of a tenancy which the tenant was incapable of mortgaging or transferring. This is a very important matter, because the question might be very different if the mortgage had bean a mortgage of the house of an occupancy tenant which was found to be appurtenant to the holding. The sole question for us to decide is whether or not having regard to "the provisions "of Section 60 of the Code of Civil Procedure the courts below were correct in dismissing the plaintiff s suit. Section 60(1) is as follows:--"The following property is liable to attachment and sale in execution of a decree, namely, lands, houses * * * Provided that the following particulars shall not be liable to such attachment or sale, namely: (a) The necessary wearing apparel, cooking vessels, beds and bedding of the Judgment-debtor, his wife and children, and such personal ornaments, as in accordance with religious usage, cannot be parted with by any woman; (b) tools of artizans, and where the Judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have bean declared to be free from liability under the provisions of the next following section; (c) houses and other buildings (with the materials and the sites thereof and the laud immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him.

(3.) The argument on behalf of the respondents is that by virtue of the proviso the house of the defendants cannot be sold, and that inasmuch as the house cannot be sold in execution of the decree, no mortgage decree ought to be made.