SHAFIAN Vs. HAMID-UL-LAH KHAN

JUDGEMENT

(1.) THE appellant in the present case is the decree-holder. THE respondent who has not appeared is the judgment-debtor. In execution of her decree the appellant attached a house belonging to the judgment-debtor. THE latter pleaded that under Section 60 of the Coda of Civil Procedure, he was an agriculturist and the house was occupied by him as such and, therefore, it was not liable to attachment or sale. He produced evidence. He went into the witness-box himself and called two witnesses. This evidence discloses the following facts. THE judgment-debtor owns two houses situate in Mohalla Jalalnagar in the town of Shahjahanpore. Apparently the land on which these houses stand belongs to him. He lives in one house and in the next house he keeps his cattle, plough and his carts. He is a tenant of 50 bighas (pacca) land from one Jumman Khan. He also owns a little zamindari which he puts at 20 bighas in all. THE evidence shows that the judgment-debtor is an agriculturist and that agriculture is his chief occupation and the chief means of livelihood and that his zamindari is infinitesimal in amount. THE Court below has held on these facts that the judgment-debtor is an agriculturist, that the house attached belongs to him and is occupied by him as such and in view of the terms of Section 60 of the Code of Civil Procedure has directed release from attachment and sale THE decree-holder called no rebutting evidence whatsoever. On behalf of the appellant, it is urged that the judgment-debtor is not a tenant of the land on which the houses stand, that he is the owner of that land and that he is not an ordinary tenant who has built a house on the land belonging to the zamindar. THErefore the houses are occupied by him not as an agriculturist but as owner and zamindar and, therefore, are liable to attachment. In my opinion there is no force in this objection, for the simple reason that the judgment-debtor is an agriculturist and that the house attached is occupied by him. One of his houses is a residential house and the other is used for keeping cattle and implements of husbandry. Clause (c) of the proviso to Section 60 merely exempts the house and any building belonging to an agriculturist and occupied by him as an agriculturist, even if he happens to have purchased the site. THE present case clearly comes well within the proviso to Section 60 and the objections were properly allowed by the Court below. THE appeal is, therefore, dismissed, but I make no order as to costs as the respondent does not appear.