MATAM BASAYYA Vs. HANUMANTHA REDDI

JUDGEMENT

(1.) The question in this appeal is whether the sale of the appellant's house in execution of a money decree against him can be set aside on the ground that under Section 60(1)(c), Civil P. C, a house in the occupation of an agriculturist is exempted from attachment. The lower Court held that in view of the conduct of the appellant in not claiming his rights on two prior applications, first at the time when the property was attached, and secondly when the property was brought to sale, be cannot raise the objection now after the property has been brought to sale.

(2.) There can be no doubt that if a person during the course of execution proceedings does not raise an objection to the sale of property which, if raised, would prevent the property from being brought to sale, he is debarred by the principle of constructive res judicata from raising that same objection either in subsequent proceedings or at a subsequent stage in the same execution proceedings. The learned advocate for the appellant, however, seeks to distinguish this ease by contending that there is an absolute bar laid down in Section 60 (1) (c), Civil P.C., based on public policy which renders the sale of any house occupied by an agriculturist void. He has quoted Aidal Singh V/s. Khazan Singh in support of his contention. That was a case in which the sons of an agriculturist in a subsequent suit con-tended that the sale of an ancestral house in which their father had been living and which had been brought to sale in execution of a decree against the father was absolutely void. The learned Judges held that as the sons had an independent cause of action they could bring a suit. They further held that in any event there was an absolute prohibition under Section 60 (1) (c) against the sale of an agriculturist's house and that the sale therefore was void. The same questions, however, arose in a subsequent case before a Full Bench of the same High Court in Thakur Din V/s. Sitaram and the learned Judges on both points disagreed with the learned Judges in Aidal Singh V/s. Khazan Singh . They held that when the house was sold, the father represented not only himself but also his sons; and also that as the father had not raised the objection at the first opportunity, he and his sons were debarred by the principle of constructive res judicata from raising the point in subsequent proceedings.

(3.) It is said that there is no direct decision on this question in this High Court; but a very similar question arose in Somasundaram V/s. Kondayya ( 26) 13 A.I.R. 1926 Mad. 12 in which was raised an objection to the sale of an inalienable inam that was not raised during the execution proceedings, with the result that the inam was sold. One of the learned Judges, Venkatasubba Rao J. said: It was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff's suit should on that ground be dismissed. I cannot follow this contention. As I have said, we are not here concerned with the true, facts of the case but only with the result of certain proceedings. Is the defendant to be permitted to plead that the land was inalienable at the time of the Court sale? The effect of the order confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property can be sold.