Judgment :- 1. Appellants herein executed a mortgage deed in favour of the respondent herein as security for the loan advanced. Subject matter of the mortgage is 5.5 cents of land together with the house, in which appellants are residing. In due course decree was obtained to enforce the mortgage. In execution residential property was brought to sale. Judgment-debtors raised objection that residential plot is exempt from sale under S.60(1)(c) of the Code of Civil Procedure (for short'the Code'). The objection was upheld by the court below. Thereafter the respondent filed EA 256/83 seeking review of the earlier order. Review application was opposed by the judgment debtors, but allowed by the court below. Hence this appeal. 2. Learned counsel for the appellants submitted that property mortgaged to the respondent and brought to sale in execution of the mortgage decree includes the house, in which appellants are residing and therefore it is exempt from sale under S.60(1)(c) of the Code. 3. S.60 deals with property liable to attachment and sale in execution of a decree. Sub-s. (1) enumerates properties which are liable to attachment and sale, in execution of a decree. Proviso enumerates properties which are exempt from attachment or sale, in sub-clauses (a) onwards. Sub-clause (c) exempts houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary far their enjoyment) belonging to an agriculturist or labourer or a domestic servant. Appellants are labourers and the property sought to be sold is their residential house and site thereof. If this is a case of attachment and sale in execution of a money decree, undoubtedly, property will have to be treated as exempt under the provisions of S.60(1)(c) of the Act. The answer of the respondent is that S.60 deals only with property liable to attachment and sale in executions of a decree and the property exempted from such process and not with sale of mortgaged property. 4. The appellant would stress on the expression used in sub-section (1) 'attachment and sale' and the expression used in the proviso 'attachment or sale' to contend for the position that while sub-s. (1) may not apply to mortgage decrees, proviso would attract even mortgage decrees. Alternatively learned counsel contended that even sub-s. (1) would apply to mortgage decrees and the expression 'attachment and sale' must be understood as 'attachment or sale'. 5. Alternatively learned counsel contended that even sub-s. (1) would apply to mortgage decrees and the expression 'attachment and sale' must be understood as 'attachment or sale'. 5. We find that two Division Benches of this Court had considered the question and answered the same against the appellants. In Kochumariam v. Kshema Vilasam Co. (1973 KLT 761) the Division Bench observed that sale under a mortgage decree, strictly speaking, is not a sale in execution of the decree; it is a sale provided in the document of mortgage and what takes place after the decree is a satisfaction of the decree and that the proviso cannot apply to mortgage decrees where there is no need for attachment. The heading of the section and sub-section uses the expression 'attachment and sale'. Under the provisions of the CPC there can be a sale without attachment. Attachment is uncalled for in the case of sale of property in execution of mortgage decree. That is because by act of parties and operation of the provisions of the Transfer of Property Act property is subject to a charge. The charge could be enforced straight away by sale. S.60(1) is in relation to attachment and sale of property. Sub-s. (1) clarifies what property could be the subject of attachment and sale, i.e., sale in pursuance of attachment by court. Proviso to sub-s. (1) can only operate in the area intended to be covered by sub-s. (1). Sub-s. (1) does not apply to cases of sale without attachment. Equally so proviso also cannot apply to cases of sale without attachment. Sub-s. (1) as well as the proviso apply only to cases of sale following attachment. Another Division Bench of this Court also considered this question in this manner in Rahima Beevi v. Kerala Financial Corporation (1986 KLT 539). We respectfully agree with the view taken by the two Division Benches of this Court. 6. Learned counsel for the appellants would contend that those decisions were pronounced without reference to the effect of sub-s.1(A) of S.60, introduced by amendment in 1976. Sub-s.1(A) states that notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void. Sub-s.1(A) states that notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void. Learned counsel would have it that execution of mortgage in regard to residential houses by a worker would amount to waiver of the exemption provided in the proviso to S.60(1) and such waiver is void. Sub- S.1(A) could not have been considered by the earlier Division Bench because the amendment came only later. Latter Division Bench did not advert to sub-s. 1(A), but the decision turned on the view taken by the court that an order passed under the provisions of the Kerala Financial Corporation Act 1951 did not amount to a decree and therefore it was not a case of execution of a decree. In that view the court held that S.60 itself would not apply except for the procedural aspect. The question as posed by the appellants in this case was not urged before the court. 7. It is not possible to treat execution of a mortgage governed by the provisions of the Transfer of Property Act as a waiver contemplated under sub-s.(1A) of S.60 of the Code. The question of waiver would arise only in the context of attachment and sale in execution of a decree. The provision was introduced because of difference of opinion among various High Courts as to whether the benefit of exemption under S.60(1) could be waived by judgment-debtors. It was to protect the interest of the beneficiaries of the exemption under proviso to sub-s. (1) that sub-s. (1A) was enacted by making it clear that there could be no waiver in the eyes of law. Exemption under the proviso is from the liability of the property from 'attachment and sale' under sub-s. (1); that waiver must be of exemption of property from attachment and sale. We have indicated that sub-s. (1) and the proviso would only operate in relation to money decrees and not decrees in enforcement of mortgages. If sub-s. (1) and the proviso cannot apply in the case of mortgage decrees, equally sub-s. (1A) will not apply in the case of mortgage decrees. We have indicated that sub-s. (1) and the proviso would only operate in relation to money decrees and not decrees in enforcement of mortgages. If sub-s. (1) and the proviso cannot apply in the case of mortgage decrees, equally sub-s. (1A) will not apply in the case of mortgage decrees. That is because the declaration of attachability and saleability of property in sub-s. (1), exemption from such attachment or sale in the proviso and the embargo on waiver can operate only in the same field, that is, decrees other than mortgage decrees. 8. Mortgage, as we have indicated, is a transaction covered by the Transfer of Property Act. Any person having any interest in the immovable property can subject the property to mortgage, subject only to the limitations if any, under the provisions of the Transfer of Property Act or in other Acts governing the field. A person having a house of his own has certainly a right to create a mortgage on that property. That right is not taken away by the provisions of the Transfer of Property Act or of any other statute. That right cannot be said to have been taken away by the provisions of S.60 of the Code either. If the right is not taken away, it is open to him to create a mortgage, which must necessarily give rise to a right of sale either through court or even otherwise. We do not think that right is sought to be taken away by introducing sub-s. (1A) of S.60 of the Code. Execution of a mortgage in relation to residential house by persons falling under the exempted category would not amount to waiver as contemplated in subsection (1A) of S.60. We therefore hold that the house compound of the appellants is liable to be sold in execution of mortgage decree. 9. Learned counsel contended that the court originally held that property is exempt from attachment and sale and that order has been reviewed and that there is actually no ground for review. It ii pointed out that mistake of law is not aground for review. That may be. But in this case ground for review is not a mistake of law, but the failure of the court initially to consider the impact of decree being one on the mortgage. It ii pointed out that mistake of law is not aground for review. That may be. But in this case ground for review is not a mistake of law, but the failure of the court initially to consider the impact of decree being one on the mortgage. We find from a reading of the earlier order that the court did not advert to the fact that decree is a mortgage decree and to the question whether such a decree would come within the ambit of S.60. This was certainly an error apparent on the face of the record, which provides a legitimate ground for review. 10. We therefore do not find any ground to interfere with the impugned order. The appeal is dismissed, but in the circumstances of the case without costs.