Venkateswara Rao, J.
1. The only question that falls to be considered in this civil revision petition is as to whether a house belonging to an agriculturist is liable to be sold in execution of a decree obtained on the basis of a mortgage of that house, made by the agriculturist.
2. The respondent obtained a mortgage decree against the petitioner in O. S. 4/61 on the file of the Munsif Kollapur, and thereafter applied to that Court, in E. P. 28/61 for sale of the hypothecate consisting of a house. The petitioner thereupon made a part-payment to the respondent and was permitted by the Court, with the consent of the latter, to pay the balance in instalments. As she committed default in payment, the decree-holder once again applied for sale of the house in E. P. 14/64. On receipt of the notice of sale, the petitioner filed E. A. 17/64, out of which this revision petition arose, for dismissal of the execution petition on the ground that the debt covered by the decree became extinguished under Sec. 16 of the Hyderabad Agricultural Debtors' Relief Act and that her house is, in any view not liable for sale in view of Clause (c) of the proviso to Section 60(1) Civil P. C. as she is an agriculturist and has all along been using that house both for her residence as well as storage of agricultural produce. This petition was opposed by the respondent who filed counter contending that the petitioner is not an agriculturist, that it is not correct to say that the debt became extinguished under Section 16 of the Hyderabad Agricultural Debtors Relief Act, that she is likewise not entitled to invoke to her aid Sec. 60(1)(c) Civil P. C. as it is inapplicable to mortgage decrees, that she should in any view be deemed to have waived the benefit of the protection, if any, afforded by Section 60(1)(c) by voluntarily creating a mortgage over the house and that she is also barred from questioning the executability of the decree by sale of the hypothecate as she did not raise his objection either in the suit or in the earlier E. P. 28/61.
The learned Munsif found that the petitioner is an agriculturist but negativated her contention that the debt became extinguished under Sec. 16 of the Hyderabad Agricultural Debtors' Relief Act. On the other question arising in the case, held that Sec. 60(1)(i) Civil P. C. has no application to mortgage decrees, that the petitioner is not entitled to claim the exemption as she should be deemed to have waived the 'privilege' when she created a mortgage over the house and that she is in any view precluded from pleading Section 60(1)(c). Civil P. C., as a bar to the proposed sale of her house by constructive res judicata as she failed to raise the objection either in the suit or in the earlier execution petition 28/61. He accordingly dismissed the petition with costs. Aggrieved by this decision, the judgment-debtor has preferred this revision petition.
3. Our learned brother, Venkatesam, J., before whom this petition came up for hearing in the first instance, referred it to the Bench having regard to the fact that 'there is no decision of a single Judge or a Bench of this Court on this point though there are conflicting decisions of other High Courts' and that 'the judgment of a Bench of the Hyderabad High Court reported in Sivarama Reddy (Minor) v. Sayed Ismail, 38 Deccan LR 252, supports the contention of the learned counsel for the petitioner.'
4. It is contended for the petitioner that the decision of the Court below to the effect that she is not entitled to the protection of Sec. 60(1)(c) of the Code, notwithstanding that she is found to be an agriculturist is contrary to law and cannot be sustained. While conceding that the petitioner is an agriculturist within the meaning of Sec. 60(1)(c), it is urged for the respondent that the reasons assigned by the Court below in support of its conclusion that the petitioner is not entitled to claim exemption from sale in respect of her house are perfectly sound and unassailable. It will be useful to read Section 60 to the extent it is necessary and material for our purpose, before embarking upon a considerations urged for the parties regarding its scope.
'60 (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses xx xx xx xx xx and, save as hereinafter mentioned, all other saleable property, moveable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:
Provided that the following particular shall not be liable such attachment or sale, namely
(a) xx xx xx xx
(b) xx xx xx xx
(c) 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.'
5. Learned counsel for the petitioner argued that Section 60(1)(c), which is plain, categorical and mandatory in its terms, imposes an absolute embargo on the sale of houses belonging to agriculturists in execution of decrees and that it does not make any distinction between simple money decrees and decrees obtained on the basis of mortgages for the purpose of attracting the prohibition contained in it. The decisions reported in Niadar Singh v, Sabit Khan, AIR 1919 All 222, Mahmud Jan v. Firm Gutta Singh, AIR 1941 Pesh 53 and 38 Deccan LR 252, are cited in support of this contention. It is on the other hand contended for the respondent, on the strength of two Full Bench decisions of the Allahabad and Lahore High Courts reported in Mubarak Hussain v. Ahmed, AIR 1924 All 328 (FB) and Alla Baksh v. Chet Ram, AIR 1945 Lah 123, respectively besides a few other decisions that Sections 60(1)(c) is applicable only to sales held in execution of decrees in which previous attachment is necessary and not to mortgage decrees where the property could straightway be sold without the need for prior attachment.
6. We will now proceed to examine the decisions on which reliance is placed for the parties in support of their respective contentions. It was held by a Division Bench of the Allahabad High Court in AIR 1919 All 222, that the house of an agriculturist which is appurtenant to his agricultural holding, is not liable to be sold in execution of a decree obtained on the mortgage of a house made by the agriculturist. An earlier Full Bench decision of the same High Court in Bhola Nath v. Mt. Kishori, (1912) ILR 34 All 25, was distinguished in that case on the ground that what was an agriculturist could be sold in execution of a decree on the mortgage of that house if it is not appurtenant to the agricultural holding which the agriculturist is prohibited by law from mortgaging or transferring. AIR 1919 All 222 does not seem to help us in reaching decision on the point in issue between the parties in this case as it does not contain any discussion and simply ruled that the prohibition contained in Section 60(1)(c) is attracted if the mortgaged house appertains the agricultural holding the alienation of which is prohibited by law.
Another Full Bench of the same Court consisting of Walsh, Ryves and Mukerji, JJ., had again occasion to consider in AIR 1924 All 328 (FB) the question as to whether a house belonging to and occupied by an agriculturist cannot be sold having regard to the provisions of Section 60 of Civil Procedure Code although the decree is one on mortgage and directs specifically the sale of that house. Two out of the three learned Judges held, following the majority decision in (1912) ILR 34 All 25, that it could be sold and that the judgment-debtor is not entitled to raise any objection against such sale in the 'execution department'. Sec. 60(1)(i) occurs under the topical head 'Attachment' in Part II of the Code which deals with 'Execution General'. Mukerji, J., expressed that the section applies only to cases in which a previous attachment is necessary, i.e., to sales held in execution of money decrees and his reasons for the same are:
'I have already said it appears under the head 'Attachment'. There is another head bearing the title of `sale'. Under the circumstances, there is no reason to think that, in dealing with the subject of `attachment' the writer had in his mind the cases of sales that are not proceeded by attachment. Of course, if the language employed should leave no other alternative possible, that is another. Section 60 in sub-section (1) lays down, in effect, that all properties over which the judgment-debtor has a disposing power will be liable to attachment and sale. I have already pointed out that all properties are not sole in execution of a decree although they may have been subjected to an attachment. The words `attachment and sale', therefore, can only mean `attachment and sale where the sale is necessary after the attachment. Otherwise there will be no consistency in the rules. That this is the meaning to be attached to the words `attachment and sale' is clear from the proviso that follows the sub-sections (1); It provides against `such attachment or sale' in the case of certain `particulars'. The use of the words `such' is important. It in my opinion, qualifies both the words `attachment' and `sale'. The proviso will thus read like this: 'Provided that, the following particulars shall not be liable to such attachment or, where necessary, such sale as has been mentioned above in the main section'. To my mind it is impossible to read the word `sale' in the proviso attachment', without doing violence to the language of the section.'
Walsh, J., agreed with him when he observed:
'All this shows that, by the scheme of the present Code, execution and the enforcement of mortgage decrees are mutually exclusive, at any rate where inconsistent.
x x x x x x x The use of the word `such' removes the distributive force which the word `or' in `attachment or sale' would otherwise have.
It must mean `attachment or sale in execution of decree'. And for the reason given above, I have come to the conclusion that a sale under a mortgagee's decree is not a sale in execution of a decree and that, therefore, the proviso does not apply.'
Ryves, J., did not however, share this majority view and held that a house mortgage by an agriculturist cannot be sole in execution of a decree though the judgment-debtor may have failed to raise the point in the course of the suit.
7. We will deal with the question as to whether or not an agriculturist-judgment-debtor is entitled to raise the objection against sale of the house mortgaged by him in execution of the decree obtained on the basis of that mortgage, at the appropriate place in this judgment. But we have to express in this context that the mere fact that Section 60 occurs under the topical head `Attachment' is not sufficient to warrant the interference that it is intended to apply only to decrees for the execution of which attachment, prior to sale, is necessary and not to decrees that could be executed by sale alone. Section 51 of the Code deals with the several modes of execution of a decree which the Court is empowered to order and one such method is by `attachment and sale' or `sale without attachment' of any property as can be seen from C1. (b) of that section. The difference in the language employed in Clause (1) of Sec. 60(1)(i) and the proviso thereto, viz., `attachment and sale' and `attachment or sale' does not therefore seem to justify the contention that the proviso is intended to apply only to cases in which prior attachment is necessary and not to decrees which could straightway be executed by sale of the property as in the case of mortgage decrees. We are of the opinion that the words `attachment or sale' occurring in the proviso were deliberately used by the Legislature with a view to make it clear that the exemptions specified in it are applicable not only to cases in which attachment should proceed the sale but also to those where there is mere attachment without sale or sale without attachment. The contrast in the employment of the words used at the beginning of the section and in the proviso would otherwise lose all its significance.
A plain reading of Section 60(1) and the proviso thereto should leave no one in doubt that the purpose of the former is to indicate the different kinds of property that could be attached and sold in execution of decree while the latter is intended to serve the purpose of enumerating the items of property which could neither be attached nor sold. The proviso, which is clear in its terms, would show that it is of general application to all decrees and not merely to decrees in which prior attachment is necessary. If it was the intention of the Legislature that it should be restricted in its operation to money decrees or decree in which prior attachment is necessary, nothing could have been easier for it than to add the words `for money' after the word `decree' in sub-section (1) is as to make it read as `the following property is liable to attachment and sale in execution of a decree for money, etc.' So, to interpret the proviso in the manner indicated by Mukerji, J., in AIR 1924 All 328 (FB) would tantamount to an attempt at legislation by substituting something which is not in the section and the proviso and which could not have possibly been intended by the Legislature itself. With great respect, therefore, we are unable to subscribe to the majority view of the learned Judges who decided AIR 1924 All 328 (FB) that the word `or' in the proviso excludes from its operation decree for execution of which prior attachment is not necessary.
8. A Full Bench of the Lahore High Court in Air 1945 Lah 123 (FB) took the same view as in AIR 1924 All 328 (FB) viz., that Sec. 60(1)(i) does not apply to mortgage decrees and that a house belonging to an agriculturist is not exempt from sale in execution of a decree based on the mortgage of that house but for an altogether (different ?) reason. Arguments for and against the view expressed by Mukerji, J., in AIR 1924 All 328 (FB) on the significance of the words `attachment or sale' occurring in the proviso to Section 60(1) and used in contrast with the word `attachment and sale' employed in sub-section (1) were addressed before this Full Bench. But Harries, C. J., who spoke for the Court, simply observed that 'much can be said for both the contentions' but did not express one way or the other as he considered it unnecessary to go into the merits and demerits of that contention since he thought it expedient not to disturb the view accepted for over 60 years by then by several High Courts that Section 60 has no application to mortgage decrees, having regard to the maximum communis error facit jus.
9. It was held in AIR 1941 Presh 53, following AIR 1919 All 222, that the house of an agriculturist cannot be sold in execution of even a mortgage decree passed against that property. The word `or' is interpreted in this decision to include also decrees in which no attachment is necessary such as mortgage decrees. The same view was expressed by the erstwhile High Court of Hyderabad in 38 Deccan LR 252. After referring to a number of decisions including the two Full Bench decisions of the Allahabad High Court in AIR 1924 All 328 (FB), ILR 34 All 25, their Lordships expressed that they would prefer the opinion which canvasses the applicability of the section to decrees obtained against agriculturists on the basis of mortgages executed by them in respect of their houses.
10. The decision cited for the respondent, viz., Ramadhin v. Sheodutt, AIR 1938 544, Ganpatrao v. A. V. Zinzarde, AIR 1948 Nag 392, Ganga Bishuna Ram v. Jagmohan Ram, Air 1927 Pat 233, Mahadeo v. Dhankal Mal. AIR 1946 All 432 and Basayya v. Hanumantha Reddy, AIR 1944 Mad 548, which will be referred to in detail in the appropriate context, simply lay down that a judgment-debtor is not entitled to claim exemption from sale in respect of the house mortgaged by him not because Section 60(1)(c) has no application to mortgage decrees but for altogether different reasons such as waiver, estoppel and res judicata.
11. Having regard to the clear and unambiguous language in which Section 60 of the Code is couched, we are inclined to hold that the proviso to Section 60 is per se applicable to all decrees including decrees obtained on the strength of mortgages executed by agriculturists in respect of their houses.
12. We are at the same time of the opinion that the prohibition contained in Section 60(1)(c) is not absolute in its nature and is inapplicable to cases in which agriculturists choose to hypothecate their houses and suffer decrees in suits brought on the basis of those mortgages as they should, in such circumstances, be deemed to have waived the benefit of Section 60(1)(c). But the learned counsel for the petitioner argued that the plea of waiver cannot be assailed of by the respondent as according to him the prohibition contained in Section 60(1)(c) is based on public policy, having been conceived in the general interests of agriculturists as a class and to ensure that they are not deprived of their houses which are so essential for their occupation and storage of agricultural produce. If the prohibition in question is really based on public policy, the judgment-debtor will certainly not be allowed to contract herself out of the benefits of the statute nor would any question of waiver arise in such cases. No Court would assist in the enforcement of a decree by sale of a house belonging to an agriculturist if it is opposed to public policy in view of the provisions of Section 23 of the Indian Contract Act. We are, however, unable to accept that there is any public policy at all behind the prohibition contained in Section 60(1)(c) of the Code. None of the decisions cited in this context for the petitioner seem to advance the case based on public policy.
Prem Prakash v. Mohan Lal, AIR 1943 Lah 268 is a case in which, according to an award and the decree that followed it, the judgment-debtor, who was the headmaster of a high school, was to pay a certain sum of money in 38 monthly instalments and his salary was charged for due payment of those instalments subject to a pre-existing attachment of Rs. 45 per mensem. On default having been committed by the judgment-debtor, the decree-holder applied for execution of the decree. It was resisted on the ground that the decree is inexecutable by reason of the prohibition contained in clause (i) of the proviso to Section 60(1) of the Code. It was held, and rightly too, repelling the decree-holder's contention that the judgment-debtor must be deemed to have waived the benefit conferred upon him by Section 60(1)(i), that the prohibition in question is mandatory and is based on public policy and not on account of any preference given or privilege granted to a public officer and that it is, therefore, not open to a public officer to barter away or waive the protection given by S. 60(1)(i) and that any agreement which has that effect is void and unenforceable.
This decision is clearly distinguishable from the facts of the instant case as the judgment-debtor there was a public servant and the prohibition against attachment of anything over and above the moiety of his salary mentioned in Section 60(1)(i) is not intended for the benefit of the judgment-debtor alone but is conceived in the larger interests of the society.
Any agreement or arrangement which has the effect of depriving public servants of a substantial portion of their salary and thus depriving them of even the subsistence minimum is bound, in the ultimate analysis, to impair their efficiency besides compelling at least some of them to succumb to temptation. Such a state of affairs would necessarily affect the public interest. This apart, the consent given by the judgment-debtor in that case for a charge being created over his salary, to be paid in future, in favour of the decree-holder would offend the provisions of Section 6(f) of the Transfer of Property Act which lays down that the salary of public officer, whether before or after it has become payable, cannot be after it has become payable, cannot be transferred except as otherwise provided by that Act or any other law for the time being force. It is, therefore, clear that the prohibition contained in Clause (i) of the proviso to Section 60(1)(i) is based on public policy and not in the exclusive interests of a particular class of judgment-debtors. Postmaster-General, Bombay v. Chenmal, Air 1941 Bom 389 is similarly of no avail to the petitioner as that is also a case in which the judgment-debtor, who was a postman, entered into an arrangement with the decree-holder providing for payment to the latter of Rs. 6 per mensem from out of his salary, by his superiors, even before it is paid to him. This arrangement undoubtedly amounted to a transfer of salary by a public servant which is prohibited by S. 6 of the Transfer of Property Act and could not naturally be given effect to.
It was no doubt observed in Air 1941 Pesh 53 at p. 56 that the protection contained in Section 60(1)(c) has been deliberately provided so that the judgment-debtor need not be without a roof over his head and without his tools and seed etc., but there is nothing in this decision to show that the prohibition is conceived in the larger interests of the society and is based on public policy. Even the decision in 38 Deccan LR 252 is not based on any grounds of public policy. all that their Lordships stated is that in their opinion the section seems to have been enacted with a view to see that the judgment-debtors are not deprived of their livelihood. We are not, therefore, persuaded to accept that any one of the decisions referred to above is an authority for the proposition that the prohibition contained in Section 60(1)(c) is based on grounds of public policy.
13. If the prohibition in question is enacted on grounds of public policy and the Legislature intended that it should be absolute in its nature, provision would certainly have been made in Section 6 of the Transfer of Property Act itself, excepting a house belonging to an agriculturist from property that could be transferred, as was done in the other cases in which the Legislature placed an absolute ban. It is not pretended with his house as the pleases. He is free to make a gift of, mortgage sell or otherwise deal with his house property and has thus unfettered powers of disposition over it. This circumstance coupled with the absence of any prohibition against voluntary transfer of a residential house belonging to an agriculturist in Section 6 of the Transfer of Property Act or elsewhere, makes it difficult to accept the contention that an unqualified ban was intended by the Legislature when it had enacted the prohibition contained in Section 60(1)(c) of the Code. This apart, in the case of a mortgage by conditional sale of a house belonging to an agriculturist the mortgage has the right to file a suit and obtain a decree for foreclosure subject of course to the conditions laid down in Section 67 of the Transfer of Property Act. Similarly, in a suit filed for specific performance of a contract of sale executed by an agriculturist in respect of his house, it is open to the Court to pass a decree directing him to execute the promised conveyance. If Section 60(1)(c) is would have certainly stepped in to prevent alienation of houses belonging to agriculturist by any means whatsoever as in the case of service inams and not merely by sale in execution of decree. We are, therefore, convinced that the prohibition contained in Section 60(1)(c) is not based on public policy and that it is simply intended to afford protection to an agriculturist from being deprived of a house to live an.
14. When once the aforesaid conclusion is reached, it necessarily follows that there can be no valid objection for the privilege conferred by Section 60(1)(c) being given up by the agriculturist. It is for him to choose whether he should take advantage of the protection afforded by Section 60(1)(c) or not and it cannot be imposed on him if does not want it. He is free to give up this protection if he chooses to do so when it is not made available to him on grounds of public policy. In other words, it is open to an agriculturist to waive the benefit conferred on him by Sec. 60(1)(c). This is what exactly the petitioner did when she voluntarily executed a mortgage of her house in favour of the respondent. We are fortified in this view by decisions of several High Courts. It was held in AIR 1938 Nag 544 that the protection given under Section 60(1)(i) is for the benefit of the under Section 60(1)(i) is for the benefit of the judgment-debtor and can be waived by her and that , therefore, if she chooses specifically to mortgage for agricultural house, she must be taken to have waived the privilege conferred upon her by the section.
This view was reaffirmed by a Division Bench of the same High Court in AIR 1948 Nag 392 wherein also it was held that Section 60(1)(c) does not impose an absolute prohibition on sale of property and that as the protection conferred by that section is for the benefit of the agriculturist, it is open to him to waive the same and that the execution of a mortgage of the house by the agriculturist would amount to waiver by him of the privilege conferred by Section 60(1)(c). To the same effect is the decision in AIR 1927 Pat 233. It was likewise held by a Division Bench of the Madras High Court in Air 1944 Mad 548 and by which we are bound that there cannot be any absolute prohibition against sale of an agriculturist's house since he can waive his right under Section 60(1)(i). We have, therefore, no hesitation in agreeing with the court below that the petitioner herein waived the protection that was available to her under Sec. 60(1)(c) of the Code the moment she executed, of her own free will, a mortgage in respect of her house in favour of the respondent.
15. We are also in entire agreement with the learned counsel for the respondent that the petitioner is barred by the principle of constructive res judicata from claiming exemption under Section 60(1)(c) of the Code as she admittedly failed to raise any plea based on it in the earlier E. P. No. 28 hypothecate pursuant to the final decree passed in the suit. it was held in Air 1944 Mad 548 referred to above that where an agriculturist has failed to claim the benefit available under Section 60(1)(c) of the Code in two prior applications for execution, he cannot raise such an objection in a later petition filed for sale of the property and is barred from doing so on the principle of constructive res judicata. It was, however, urged for the petitioner that she was under no obligation to plead the protection of Section 60(1)(c) in E. P. No. 28 of 1961 as the appropriate stage when the objection ought to be raised by her is only when the property is actually put up for sale and not before then and that the plea of res judicata is therefore not available to the respondent against her. Raghava Reddi v. Krishnaiah, : AIR1960AP631 is cited in support of the contention. This decision does not, however, seem to render any assistance to the petitioner. A house belonging to an agriculturist was attached before judgment in that case. After the suit was decreed, the attached house was brought to sale in execution thereof. The judgment-debtor did not, however, have any other notice except one under O. 21, R. 66, Civil P. C., issued at the time of drawing up of the proclamation of sale. He did not appear in answer of that notice with the result that the terms of sale were settled in his absence. The property was hereinafter put up for sale and was also purchased by a third party. As the auction-purchaser failed to make the necessary deposit, the property was ordered to be resold. It was at that juncture that the judgment-debtor put in his appearance and raised an objection based on Section 60(1)(c).
The question then arose as to whether he was barred by the principle of constructive res judicata from raising the objection against sale of his house at that stage. This was answered in the negative by the learned judges for the following reasons extracted from p. 421 (of Andh WR) = (at p. 634 of AIR) of the decision:
'In our opinion, the judgment-debtor cannot be required to raise an objection as to the saleability of the property in answer to a notice under O. 21, R. 66, Civil P. C., and the principle of constructive res judicata can have no application to a case where he had no notice of the point to be decided against him, namely, as to the liability of the property to be sold. Further, the drawing up of proclamation of sale is purely a ministerial or administrative matter and no judicial determination is involved in such a procedure. That being the position, there is no scope for invoking the doctrine of res judicata.'
But it is not the case of the petitioner before us that she had no notice of E. P. No. 28 of 1961 at the appropriate stage or that that petition was filed for a relief other than sale of her house to justify the contention that she was under no obligation to raise the plea based on S. 60(1)(c) in the course of that petition. On the contrary, it is an admitted fact that she made a part-payment to the respondent and obtained, with her consent, an order from the Court for payment of the balance in instalments in that execution petition. The principle of constructive res judicata, therefore, undoubtedly operates against the petitioner and she is consequently not entitled to the relief claimed in E. A. No. 17 of 1964 for this reason also.
16. A plea questioning the correctness of the finding of the Court below that the decree has not become extinguished under Section 16 of the Hyderabad Agricultural Debtors' Relief Act was no doubt raised in the memorandum of this revision petition but no argument at all was addressed before us to press that contention.
17. For the several stated above, we are unable to agree that the Court below acted illegally or with material irregularity in the exercise of its jurisdiction when it dismissed E. A. No. 17 of 1964 filed by the petitioner, claiming exemption in respect of her house, from sale under Section 60(1)(c) of the Code.
18. The petition, therefore, fails and is dismissed with costs.
19. Petition dismissed.