Skip to content


Sheikh Ahmad Shaikh Mohamad Patil Vs. Devram Kalyanji and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 131 of 1956
Judge
Reported in(1957)59BOMLR282
AppellantSheikh Ahmad Shaikh Mohamad Patil
RespondentDevram Kalyanji and Co.
DispositionAppeal allowed
Excerpt:
.....acquiring status of agriculturist and occupying house for agricultural purposes before date of sale whether entitled to protection under section 60(1)(c).; the material date for raising a plea under section 60(1)(c) of the civil procedure code, 1908, namely, that the judgment-debtor is an agriculturist and is occupying the house which is proposed to be sold in execution and that, therefore, the house is not liable to sale, is any date before the sale is actually held. the words 'shall not be liable to attachment or sale' mean that although a proclamation for the sale of the house might have been issued under order xxi, rule 66, of the code, the actual sale shall not be held if the judgment-debtor satisfies the court before the date of the sale that he is an agriculturist and..........agriculturist and was using this house as a farm house. the learned judge held that the judgment-debtor's plea under section 60. sub-section (1), clause (c), was a belated plea and was barred by constructive res judicata.3. now, it is important to bear in mind certain material dates in this case. the decree was passed by the city civil court, greater bombay, in favour of the respondent on june 1, 1953. it was transferred to the alibag court for execution. the darkhast was filed by the respondent for the attachment and sale of the judgment-debtor's house on october 7, 1953. the order for attachment was made on october 26, 1953. the order for sale was passed on december 3, 1953. the proclamation under order xxi, rule 66, of the civil procedure code was issued on march 8, 1954. on april.....
Judgment:

Vyas, J.

1. This is an appeal by the judgment-debtor. It arises out of special darkhast No. 15 of 1953 filed in the Court of the Civil Judge, S.D., at Alibag, and it raises a point of law under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code.

2. The point of law arises in this way: A money-decree was passed in favour of the respondent by the City Civil Court, Greater Bombay. It was transferred to the Alibag Court for execution. In execution, a darkhast was filed by the respondent-decree-holder against the appellant-judgment-debtor. During execution proceedings, the appellant's house was attached. Before the sale of the house was held, the appellant applied to the Court, claiming exemption of the house from sale under the provisions of Section 60, Sub-section (1), Clause (c). He contended that he was an agriculturist and that the house which had been attached and was being sold was used by him as a farm house. To that application the respondent objected and the ground upon which he objected was that it was not open to the appellant to raise the plea of exemption of his house from sale under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code at the stage when it was raised. The learned trial Judge raised an issue: 'Whether it is open to the judgment-debtor now to contend that he is an agriculturist?', and recorded a finding in the negative upon that issue. The learned Judge observed in the course of his judgment that a perusal of the roznama of the darkhast and a consideration of the conduct of the judgment-debtor at several stages of the darkhast would show that the plea taken by him under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code was a belated plea which would be barred by constructive res judicata. The learned Judge said that when a notice under Order XXI, Rule 66, was issued in this case to the judgment-debtor after the attachment had been levied upon his house to show cause why the house should not be sold, the judgment-debtor did not appear in the Court to answer the notice. Thereafter, an order was passed by the Court for the sale of the house and a proclamation under Order XXI, Rule 66, of the Civil Procedure Code was issued. Even then the judgment-debtor did not appear in the Court to object to the sale of his house. It was after the abovementioned stages in the darkhast proceedings that on December 7, 1954, the judgment-debtor applied under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code and claimed exemption of his house from sale upon the ground that he was an agriculturist and was using this house as a farm house. The learned Judge held that the judgment-debtor's plea under Section 60. Sub-section (1), Clause (c), was a belated plea and was barred by constructive res judicata.

3. Now, it is important to bear in mind certain material dates in this case. The decree was passed by the City Civil Court, Greater Bombay, in favour of the respondent on June 1, 1953. It was transferred to the Alibag Court for execution. The darkhast was filed by the respondent for the attachment and sale of the judgment-debtor's house on October 7, 1953. The order for attachment was made on October 26, 1953. The order for sale was passed on December 3, 1953. The proclamation under Order XXI, Rule 66, of the Civil Procedure Code was issued on March 8, 1954. On April 12, 1954, the judgment-debtor applied for instalments upon the ground that he was an agriculturist. The order refusing instalments was passed on November 24, 1954. It is not understood why the Court took as long as seven months to come to the conclusion that the instalments were not merited by the judgment-debtor. Whatever it be, the fact does remain that the order refusing instalments was passed by the Court on November 24, 1954. Thereafter, on December 7, 1954, the judgment-debtor applied under Section 60, Sub-section (i), Clause (c), of the Civil Procedure Code, claiming exemption of the house from sale upon two grounds: (1) that he was an agriculturist and (2) that he was using the house for agricultural purposes; he was using it as a farm house. This application was rejected by the learned Judge, and it is from that order of rejection that the present appeal is filed by the judgment-debtor.

4. Now, Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code lays down that the 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 and occupied by him shall not be liable to attachment or sale in the execution of a decree. It is clear that the material date for raising a plea under Section 60, Sub-section (1), Clause (c), namely, that the judgment-debtor is an agriculturist and is occupying the house which is proposed to be sold in execution and that, therefore, the house is not liable to sale is any date before the sale is actually held. The words 'shall not be liable to attachment or sale' clearly mean that, although a proclamation for the sale of the house might have been issued under Order XXI, Rule 66, of the Civil Procedure Code, the actual sale shall not be held if the judgment-debtor satisfies the Court before the date of the sale that he is an agriculturist and the house is occupied by him as such. If the liability of the house to sale, which might have existed at the date of its attachment and which might have justified the issue of a proclamation for sale, ceases any time before the date of the sale, the house becomes exempt from sale under Section 60, Sub-section (1), Clause (c). It is quite conceivable that a person may not be an agriculturist, or if he is an agriculturist, he may not be occupying the house concerned as an agriculturist, at the date upon which the order for sale of the house is passed by the Court. But he may acquire the status of an agriculturist and he may also occupy the house for agricultural purposes before the sale of the house actually takes place. In other words, during the period between the passing of an order for sale and the actual sale, it is conceivable that the judgment-debtor may, in order to earn his livelihood, take himself personally to cultivation of land and may acquire the status of an agriculturist; and after acquiring the status of an agriculturist, he may use the house as a farm house. There is nothing in the provisions of Clause (c), of Sub-section (1) of Section 60 which says that in the aforesaid case the judgment-debtor would not be entitled to claim the protection which the section contemplates. It is true that the party must raise a particular plea at the earliest stage when it becomes open to him to raise that plea. But if the stage for raising the plea itself comes into existence for the first time after the order for the sale of the house is made, then it is evident that the judgment-debtor could not have raised a plea for exemption of his house from sale at the date upon which the order for sale was made by the Court. The earliest stage for raising such plea would accrue to the judgment-debtor only when he acquires the status of an agriculturist and occupies the house for agricultural purposes. The point which I wish to emphasise is that it being perfectly open to a judgment-debtor to acquire the status of an agriculturist during the period between the passing of an order for sale of his house and the actual sale of the house, he would be entitled to claim protection under Section 60, Sub-section (1), Clause (c), if he acquires such a status and occupies the house for agricultural purposes before sale. It is also conceivable that a person may be an agriculturist, but he may not be occupying the house at the date upon which the order for the sale of the house is made and also at the date upon which the proclamation is ordered to be issued. At those dates the house might be in possession of his tenant. If the judgment-debtor is an agriculturist, but does not occupy his house personally at the dates upon which the order for the sale of the house is made and the proclamation is issued, but if before the date of the actual sale he obtains possession of the house from his tenant, he would be entitled to claim protection of Section 60, Sub-section (2), Clause (c), and the house would not be liable to be sold. The learned advocate Mr. Chhatrapati for the respondent-decree-holder invited my attention to the fact that when the judgment-debtor applied on April 12, 1954, for instalments, he did raise a plea that he was an agriculturist, but he did not contend that he was occupying the house. Mr. Chhatrapati contended that, in those circumstances, it would not be subsequently open to him to raise a plea that he was occupying the house. Mr. Chhatrapati overlooked a probability that when the judgment-debtor asked for instalments, the house might have been in possession of a tenant and that at the date upon which he claimed exemption of the house from sale, he might have got back its possession from the tenant and might have occupied it himself. In that case, if he was personally engaging himself in cultivation of lands and occupying the house for agricultural purposes, he would be entitled to claim protection for the house under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code.

5. The authorities cited by the learned Judge in his judgment do not apply to the facts of this case. The learned Judge relied upon a decision of Mr. Justice Lokur in Mahadeo Sunder v. Khanderao Sitaram : AIR1939Bom526 . In that case, the judgment-debtor failed to appear on receiving the notice issued to him under Order XXI, Rule 66, of the Civil Procedure Code, and after the terms of the proclamation for sale were settled by the Court, he made an application asking for a fresh panchnama and a fresh valuation of the property to be sold, and that application was granted and a fresh proclamation was issued; and thereafter he made an application stating that he was an agriculturist and the proceedings should be transferred to the Collector for the sale of the property. Mr. Justice Lokur held that as the judgment-debtor had accepted the order passed by the executing Court and had allowed the proceedings of sale to go on in the Court itself, it was not open to him subsequently to put forward a contention that he was an agriculturist, which he ought to have put forward when the notice under Order XXI, Rule 66, was issued. It is to be noticed that in that case the material date for raising a plea that the judgment-debtor was an agriculturist and therefore the execution should be transferred to the Collector was the date at which the judgment-debtor should have appeared in the Court in answer to the proclamation of sale. It was at that stage that he should have contended that he was an agriculturist and, therefore, the execution should not proceed before the civil Court, but should be transferred to the Collector. It was not a case where the judgment-debtor objected to the sale taking place. He objected to the sale by the civil Court and wanted the execution to be transferred to the Collector. He wanted the proceedings to be transferred to the Collector so that the Collector might hold the sale of his property. It was not a case of the judgment-debtor contending that he had acquired the status of an agriculturist and had occupied the house for agricultural purposes during the period between the passing of the order for sale and the actual taking place of the sale.

6. The next case relied upon by the learned Judge was a case of ShankarRamkrishna v. Daga Tanaji (1947) 50 Bom. L.R. 610. It was a case in which a judgment-creditor presented a darkhast for execution of his mortgage decree and notice was issued to the judgment-debtor under Order XXI, Rule 66, of the Civil Procedure Code. The judgment-debtor failed to appear in answer to the notice and the Court ordered a proclamation to issue and the sale was fixed on. a certain date. On that day, the judgment-debtor appeared and applied to the Court that he being an agriculturist, he should be allowed to satisfy the decree by paying instalments. A question arose whether it was open to the judgment-debtor to raise a contention about his status at that stage of the proceedings and it was held by the learned Chief Justice that as the judgment-debtor had applied after the date of the sale was fixed that his status should be investigated, he had brought into operation the principle of constructive res judicata and, therefore, his application was barred. Again, the material date in that case for raising a plea that the judgment-debtor was an agriculturist and was, therefore, entitled to instalments was either the date of the decree itself or the date upon which the order for attachment and sale was passed by the Court. In that case also, no question arose of the judgment-debtor having acquired the status of an agriculturist and having occupied the house for agricultural purposes after the order for sale was made, but before the actual sale was held. The learned advocate Mr. Chhatrapati invited my attention to a decision of this Court in Ushadevi Balwant v. Devidas Shridhar (1954) 57 Bom L.R. 275. It was held in that case that the plea of want of jurisdiction in the Court passing the decree could not be entertained at a late stage of execution proceedings if it was not raised at an earlier stage when an altogether different point was urged and decided, I am unable to understand how this decision could help Mr.Chhatrapati's client. In that case, it was held that the material date for raising a plea about the want of jurisdiction in the Court passing the decree was any date before the decree was passed. It was held that if the Court passing the decree was allowed to pass the decree, plea of want of jurisdiction in that Court to pass the decree could not be subsequently raised. In the present case, the point which arises is entirely different. The point which Mr. Kotwal has urged on behalf of the appellant-judgment-debtor is that at the date on which his client applied under Section 60, Sub-section (1), Clause (c), of the Civil Procedure Code for exemption of his house from sale, namely, on December 7, 195-1, his client was an agriculturist and was in the occupation of the house for agricultural purposes and, therefore, the house was immune from sale. No such point arose for decision in any of the cases mentioned above. Mr. Chhatrapati contends that even in the application made by the judgment-debtor on December 7, 1954, the judgment-debtor did not say that he was an agriculturist and was occupying the house as an agriculturist. I do not see any force in this contention. The fact that the judgment-debtor made an application and asked for exemption of his house from sale under Section 60, Sub-section (1). Clause (c), would necessarily imply that his contention upon that date was that he was an agriculturist and was occupying the house for agricultural purposes. Mr. Chhatrapati's submission that the judgment-debtor did not aver specifically in his application on December 7, 1954, that he was an agriculturist has no force, because as far back as April 12, 1954, when the judgment-debtor had asked for instalments, he had stated that he was an agriculturist. I have no doubt that the judgment-debtor did not specifically say in his application of December 7, 1954, that he was an agriculturist, because the very basis upon which he made the application for exemption of his house from sale implied that his contention was that he was an agriculturist on that date and was occupying the house as a farm house.

7. For the reasons stated above, I am of the view that the plea which the judgment-debtor raised on December 7, 1954, before the sale of the house had actually taken place, that he was an agriculturist and was occupying the house and that, therefore, the house was immune from attachment was not barred by constructive res judicata. It was open to him to take that plea and the Court ought to have investigated into that plea and ought to have given a finding, one way or the other, whether there was any substance in that plea. Accordingly, I allow the appeal and set aside the order passed by the learned Civil Judge on January 5, 1956, by which order the learned Judge dismissed the judgment-debtor's application under Section 60, Sub-section (1), Clause (c), for the exemption of his house from sale. I direct that the papers should go back to the executing Court, the Court of the learned Civil Judge, Senior Division, at Alibag, and the learned Judge should determine whether on December 7, 1954, upon which date the judgment-debtor made an application claiming protection of his house from sale, he was an agriculturist and was occupying the house. The learned Judge should also determine whether, before April 12, 1954, the judgment-debtor was not occupying this house; because if he had been occupying the house even before April 12, 1954, the fact that he did not claim exemption of the house from sale when he asked for instalments on April 12, 1954, would bar his subsequent plea under Section 60, Sub-section (1), Clause (c), which he took on December 7, 1954. It is, therefore, necessary that the learned Judge should determine whether on April 12, 1954, when the judgment-debtor asked for instalments upon the basis that he was an agriculturist, he was or was not in the actual occupation of the house. The learned Judge should also record findings on the various issues raised at exh. 24.

8. So far as the costs of this appeal are concerned, the respondent will bear his own costs and also the costs of the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //