1. This is a decree-holder's revision against the order dt. 26-8-80 passed by the Munsiff, Jamkhandi in Ex. Case No. 9/80 allowing I.A.2 and rejecting I.A.3.
2. The Decree-holder is the wife of JDr. No.1, JDr. No. 2 is the brother of JDr. No. 1. The JDr. filed a suit against her husband for maintenance. Lower Court awarded maintenance at the rate of Rs. 30/- per month. She filed an appeal. In that appeal the maintenance was raised to Rs. 40/- per month. JDr.No.1 also filed an appeal against the award of maintenance of Rs. 30/-. It was dismissed.
3. It is undisputed that the present house item No. 3 and some other properties were charged in the decree itself with maintenance of the JDr. She sued out execution case No.9/80, claiming arrears of maintenance from JDr.No. 1. She sought the recovery of the said amount by sale of the right, title and interest of JDr.No. 1 in suit item No. 3 house. Notice under O.21, R. 66 proposing to sell 1/3rd share in the house was published. Thereafter, the sale was held. Thereafter Mr. raised a contention that it was an agricultural house which was exempt under S. 60 CPC. The JDr. denied the same. The lower Court allowed the application I.A. 2 filed by JDr.No. 1. under S. 60. Hence the revision by the JDr.
4. Learned counsel Albal urged that JDr.No. 1, who was party to the suit filed by his wife for maintenance, had not raised such a contention in the suit itself. He further urged that JDr.No. 1 himself had filed an appeal against the judgment and decree awarding maintenance to her. Even that appeal was dismissed. Therefore, he was aware at least at the time of filing the appeal that he was an agriculturist. If the house in question was really belonging to an agriculturist and it was exempt under S. 60, he would not have failed to raise this point in the appeal. He having not done so, it may not be proper for him at this stage to turn back and contend that he wants to claim exemption under S. 60. It is no doubt true that he raised this contention for the first time in the course of the execution. It may be that he had not raised the said contention in pursuance of the notice served on him under O.21, R. 66. But in view of his not raising such a plea in the suit, which was open to him, the principle of res judicata would come-in.
5. Sri Gachchinmath urged that such a plea could not be raised in the appeal filed by JDr. No. 1. JDr.No. I did not shut his eyes to the decree passed by the trial Court. In the suit the property was charged. That charge also must have been challenged in the appeal filed by him. Therefore, the said contention raised by Sri. Gachchinmath fails.
6. Sri Gachchimnath then submitted that JDr.No. I had sold his house to his brother JDr.No. 1. Mr. Albal has produced before me a copy of the deposition of JDr. No. 1 recorded in the suit. He has stated therein that he has sold his share in the house to his brother about 3 or 6 years back. His deposition was recorded in 1973. Therefore, he must have sold the property in or about 76 or 77. Therefore, he has no subsisting interest in the suit house. If it is so, it is not now open for him to claim exemption.
7. A copy of the deposition of JDr.No. 1, now produced before me, goes to show that he deposed in the Court thus:
I am working under one Parthanahalli and looking after his buffalow. I get food and clothes as my wages. I am residing in his garden land only. I have no other income to give maintenance to the plaintiff. If it is so, I am really afraid how he could raise the plea of being an agriculturist. When he is not an agriculturist on his own admission, he cannot claim exemption under S. 60, CPC.
8. Therefore, under these circumstances, the order passed by the Court below is set aside. The revision is allowed. The Court below should proceed further with the execution on merits. No costs.
9. Petition allowed.