UMESH CHANDRA BANIKYA Vs. BHARAT KUMAR SHABASUNDAR

JUDGEMENT

(1.) THIS appeal is by an executing creditor. He attached certain properties consisting of two plots of land, one of them being the homestead of the judgment-debtors. The judgment- debtors filed an application under Section 47, Civil P.C., on the ground that they were agriculturists and the property was exempt under Section 60, Civil P.C. The Munsif held that with some doubt the main occupation of the judgment- debtors was agriculture. In reaching that conclusion he said thus: It is difficult to say on the evidence before me whether the applicant primarily lives on agriculture. In any case there is no doubt that the judgment-debtors main occupation is agriculture even now as the decree-holders have also described them as agriculturists in their execution petition, although the judgment-debtors have now no other land besides the two attached plots.

(2.) HAVING found this point in favour of the judgment-debtors, he released plot No. 1, which in his opinion, was the homestead. The creditor appealed. The learned Subordinate Judge reversed the rather halting finding of the Munsif. He reached the conclusion that agriculture was at the most a subsidiary occupation of the judgment-debtors. There can be no doubt as to the correctness of this view, because the only evidence in favour of the judgment-debtors is the use of the word grihastha in the creditors application. This however is offset by the admission made in the petition of the judgment-debtors themselves. The only property owned by them is the property which was the subject-matter of the application. There was therefore nothing left from which they could derive their livelihood as agriculturists. They made no attempt to show that they worked as agriculturists on the lands of any other person. There can be no question that the decision of the learned Judge is the only possible decision on the evidence. It is now contended that on the evidence the learned Judge ought to have dismissed the application. In my opinion that proposition cannot be seriously disputed. I need only refer to the decision in Ashmatulla Sircar V/s. Pan Mahmad Chaudhurry (1916) 3 A.I.R. Cal. 891. The appeal is accordingly allowed. The orders of the Courts below are set aside. The application of the opposite parties is dismissed. The parties will bear their own costs throughout this litigation.