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2009 DIGILAW 1075 (KER)

Vasanthakumari v. Raichal Banitta

2009-11-11

S.S.SATHEESACHANDRAN

body2009
Judgment : The petitioner is the judgment debtor in E.P.No.51 of 2008 in O.S.No.695 of 1997 on the file of the Principal Munsiff Court, Kollam. Decree executed in the above suit is one for money, and the respondent is the decree holder. At the trial stage, 101/2 cents of property, which on actual measurement, is stated to be having only nine cents, allegedly belonging to the judgment debtor, had been attached in the execution proceedings. Steps were taken for sale of that property. Petitioner/judgment debtor claiming to be entitled to the protection under Section 60(1)(c) of the Code of Civil Procedure, as being a prawn pealing worker, contended that the attached property belong to her and her minor daughter jointly under Ext.P1 deed and she has got absolute right over one half of that property, 4.5 cents comprising the hut under her occupation, and the rest of the property, the remaining 4.5 cents, belong to her minor daughter. The property claimed by her, 4.5 cents with the building, is not liable to be attached as she is an agriculturist in occupation of the hut situated therein and the rest of the property remaining 4.5 cents also cannot be proceeded as it belongs to her minor daughter was her case. The respondent/decree holder resisted that application filing Ext.P5 objection. Claim of the judgment debtor that she is entitled to the exemption under Section 60(1)(c) of the CPC from attachment of the building under her occupation was disputed by the decree holder contending that in the trial side, she had admitted that she was doing marine product business in the fishing harbour. Though the property had been attached during trial, there was no challenge on the basis of the exemption now canvassed was the further objection of the decree holder. The learned Munsiff, after appreciating the materials produced and hearing the counsel on both sides, negatived the claim of the judgment debtor for exemption under Section 60(1)(c) of the CPC vide Ext.P7 order. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned Munsiff has not appreciated the materials in the proper perspective with reference to the statutory prescription covered by Section 60(1)(c) of the CPC, and in fact, the claim of the judgment debtor as an agriculturist seeking exemption of the building in her occupation and its appurtenant premises from attachment was found against for reasons wholly unsustainable under law, is the submission of the learned counsel. The reason set out in Ext.P7 order that the judgment debtor being a member of the Mathsya Thozhilali Kshemanithi Board and having conceded in her evidence that she and her husband are depending on the income from the fishing harbour, and further with no evidence to show that she is carrying out any agricultural activity in the attached property, is disentitled her to claim exemption as an agriculturist, according to the learned counsel is a misreading of the provision covered by Section 60(1)(c) of the CPC, and further, violating the spirit and object covered by that rule. The learned counsel appearing for the decree holder contended that no interference with Ext.P7 order passed by the learned Munsiff, in the given facts of the case and also on the principles of law applicable, is called for. Reliance is also placed by the learned counsel in Thankavelu v. Ramesh Babu (2007 (4) ILR 234) to contend that a self employed labourer like the present petitioner/judgment debtor cannot be considered as a labourer or an agriculturist for the purpose of Section 60(1)(c) of the CPC, and so much so, she is not entitled to the exemption from attachment of the building in her occupation as provided under that rule. 3. Perusing Ext.P7 order with reference to the submissions made by the counsel on both sides and also the exhibits tendered with the writ petition, I find the issue posed for consideration as to whether the judgment debtor, a prawn pealing worker, is entitled to the exemption of her house/hut with the appurtenant premises thereto, as provided under Section 60(1)(c) of CPC, has not been examined by the learned Munsiff in the correct perspective and that has no doubt resulted in forming of wrong conclusion. 4. 4. Subject to the proviso to sub section (1), Section 60 of the CPC deals with all saleable property which belongs to the judgment debtor that may be attached and sold in execution of a decree against him. Proviso to sub section (1) of that Section carves out the various properties which shall not be liable to such attachment or sale. Clause (c) under that proviso gives protection to the agriculturist against the attachment of his residential house. By the amended Act of 1976 to the Code, that benefit had been extended to a 'labourer' and 'domestic servant' as well. Clause (c) of the proviso reads thus: "Houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant] and occupied by him." 5. The exemption given to the agriculturist protecting from attachment of his house in execution of a decree is based upon high public policy of the State as any interruption of the agricultural operations is against the national interest and it may eventually lead to fall in agricultural production. Major section of the population in the country is engaged in agricultural operations for sustenance in life. In fact two thirds of India's population is still dependent on agriculture. Since the agricultural operations depend upon so many factors beyond the control of those engaged in such sector, very often at the mercy of Nature and the nation being primarily an "agricultural country", it was felt imperative that protection should be provided to the agriculturist against attachment of his residential house in execution of decree. Such policy of the State cannot be defeated even by waiver of such right by the party entitled thereto as it is opposed to public policy. Such policy of the State cannot be defeated even by waiver of such right by the party entitled thereto as it is opposed to public policy. True, it is for the person who claims to be an agriculturist to produce such materials as are necessary to substantiate his status as such to have the protection from attachment of his residential building, as entitled to under clause (c) of sub section (1) of Section 60 of the CPC, but, the failure of the party to produce materials to substantiate his claim is no ground or even a waiver of his right as such cannot be given unmerited consideration, if the court finds that he is entitled to such exemption as such right is conferred on the basis of public policy and its denial is opposed to public policy. I have referred to the above aspects since the decree holder has raised an objection that on the trial side, the judgment debtor had given evidence that she and her husband earned their livelihood by marine business in the fishing harbour. Whatever be the merit of that piece of evidence, and even if her property had been attached during trial, before passing of the judgment, that circumstance would not disentitle her to claim protection from attachment of her residential building in the execution of the decree, if she then is an agriculturist or labourer or domestic servant as covered under Section 60(1)(c) of the CPC. The cardinal question to be examined is when execution of the decree is proceeded the judgment debtor is an agriculturist, labourer or domestic servant entitled to exemption of attachment of his/her residential building in his/her occupation. Ext.P7 order disclose that the court below has not considered that question while holding that the petitioner/judgment debtor is not entitled to the protection from exemption of attachment under Section 60(1) (c) of the CPC. 6. In Appasaheb v. Bhalchandra (AIR 1961 SC 589), the apex court has held that before a person could claim to be an agriculturist "he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise". 6. In Appasaheb v. Bhalchandra (AIR 1961 SC 589), the apex court has held that before a person could claim to be an agriculturist "he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise". Same test is adoptable in the case of labourer or domestic servant, who has also been brought in along with agriculturist under Section 60(1)(c) of the CPC as entitled to the exemption from attachment of the building in their occupation in execution of a decree. The labourer or domestic servant must show that he is dependent for his livelihood, sustenance in life, from his labour or service, as the case may be, and is unable to maintain himself otherwise. That test alone is required to be satisfied by the labourer or domestic servant to prove his entitlement for exemption from attachment of the residential building under his occupation as contemplated under the rule. It has to be noted that the words 'labourer' and 'domestic servant' are used in their ordinary meaning and not in the technical sense. Even a skilled labourer like a mason, it has been held, is entitled to the benefit under the clause 'c' of the proviso to sub section (1) of Section 60 of the CPC (Challa Ramaiah v. Desu Guruvaiah (AIR 1989 Andhra Pradesh 56). The initial burden, no doubt, is on the judgment debtor to show that he is entitled to the benefit under Section 60(1)(c) of the CPC; but, once he discharges that burden, the decree holder has to show by convincing evidence that he is not an agriculturist, labourer or domestic servant, and thus, not entitled to the benefit. 7. The petitioner/judgment debtor claimed exemption to attachment of her residential building in the attached property as a prawn pealing worker. The learned Munsiff has negatived her claim for two reasons, as seen from Ext.P7 order, that in her cross examination she had stated that she and her husband are depending on the income from fishing harbour and there is no whisper that she is conducting any agricultural work in the property which had been attached in execution of the decree. The learned Munsiff has negatived her claim for two reasons, as seen from Ext.P7 order, that in her cross examination she had stated that she and her husband are depending on the income from fishing harbour and there is no whisper that she is conducting any agricultural work in the property which had been attached in execution of the decree. Assuming that she had stated in her evidence that she and her husband are depending on the income from fishing harbour that does not in any way disprove her case that she is not a prawn pealing worker. She need not carry out agricultural work in her property to claim the exemption under Section 60(1)(c) of the CPC, but, only show that she is a labourer who depends for her sustenance in life by her labour. If she is a prawn pealing worker as claimed, she is qualified to be termed as a 'labourer', provided, she is depending for her living on that labour and is unable to maintain herself otherwise. She has been given a membership by the Kerala Fisherman's Welfare Fund as evidenced by Ext.P2 showing her work as pealing, in fact, adds credence to her claim that she is a prawn pealing worker. A prawn pealing worker, normally, can carry out such work only at some places close to the fishing harbour where fishing activities are carried out. So much so, her dependence on the fishing harbour, which is correlated to the nature of the work, does not in any way show that she is not entitled to the exemption under Section 60(1)(c) of the CPC. The decision relied by the learned counsel for the decree holder in Thankavelu v. Ramesh Babu (2007 (4) ILR 234) has no connection or parallel with the present case as it is noticed that was a case where a baker made bread and biscuit for being supplied to bakeries and shops. Nature of the work done by him was found to be one for profit, and evidently, it appears, the judgment debtor in that case could not satisfy that he was really depending on his work for his livelihood. The question whether a self employed worker can claim the benefit of Section 60(1)(c) of the CPC as such does not arise for consideration in the present case, and so much so, that question is not considered for disposing of this petition. The question whether a self employed worker can claim the benefit of Section 60(1)(c) of the CPC as such does not arise for consideration in the present case, and so much so, that question is not considered for disposing of this petition. 8. Though the court below has not gone into the merit of the claim canvassed by the judgment debtor with reference to the case advanced by her seeking exemption from attachment of her residential building, to the extent of 4.5 cents comprising of the building, advancing a further case that the rest of the 4.5 cents exclusively belong to her daughter, as the claim of exemption requires to be reconsidered by the court below afresh, the scope and ambit of the rule covered by Section 60(1)(c) of the CPC call for further elucidation. What is exempted is the residential house or building and appurtenant premises thereto necessary for its enjoyment, belonging to the agriculturist or labourer or domestic servant, provided, it is in his or her occupation. The house should belong to the judgment debtor and he or she should be in occupation. The land where the house is situate is jointly owned by the judgment debtor with others is not material if the judgment debtor can substantiate that the house belongs to him it is under his occupation and that he is an agriculturist or labourer or domestic servant entitled to exemption from attachment of his house. In the given facts of the case, the judgment debtor claims that she is having one half right over the attached property along with her minor daughter. She has set up a case that 4.5 cents with building in that property belongs to her and the rest to her minor daughter. Even if the building belongs to her and under her occupation, her right over to every morsel of the property is excessive with that of the minor daughter, and so much so, even if she is found entitled to exemption of the house with the appurtenant premises, in case she is found to be a labourer entitled to such exemption under Section 60(1)(c) of CPC, as against the rest of the property, whatever rights she has over such property is liable to attachment and be proceeded for sale in execution of the decree. Ext.P1 title deed stands jointly in her name and also of her daughter in no way will assist to shield her right in respect of the rest of the property excluding the building and its appurtenant premises from attachment, even if she establish her case to get exemption under Section 60(1)(c) of the CPC. 9. Ext.P7 order is set aside directing the learned Munsiff to examine the claim for exemption canvassed under Section 60(1)(c) of the CPC by the petitioner/judgment debtor taking note of the observations made above and in accordance with law, as expeditiously as possible and at any rate, within a period of one month from the date of receipt/production of a copy of this judgment. Writ petition is disposed as indicated above.