1. These are execution appeals arising respectively from O. S. Nos. 14 and 15 of 1969 of the Subordinate Judge's Court. Ernakulam. A common question arises in these appeals and the question is whether Section 60(1) proviso (c) of the Code of Civil Procedure would apply to mortgage decrees. Section 60(1) C. P. C. is in these terms.
'(1) The following property is liable to attachment and sale in execution of a decree, namely lands, houses or other buildings, goods money, bank-notes, cheques, bills of exchange, hundis, promissory notes government securities, bonds or other securities for money debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable 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 judg-ment-debtor or by another person in trust for him or on his behalf:
Provided that the following particulars shall not be liable to such attachment or sale, namely:--
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 eniovment) belonging to an agriculturist and occupied by him.'
In the cases before us two decrees were obtained by Kshema Vilasam Company Trichur against the same judgment-de-btors. Kochumariam and others on two mortgages executed by her. When in execution of the decrees the property was proclaimed for sale judgment-debtors objected stating that the property is their homestead, where they are residing and hence not liable to attachment or sale. In other words, the contention is that they are protected by Section 60(1) Proviso (c) of the C. P. C. quoted already. As against this objection, the decree-holder stated that the proviso, in question, cannot and does not apply to mortgage decrees, where the sale is not preceded by attachment, that is to say Section 60 C. P. C. has application to decrees, the execution of which reauires attachment and sale. The learned Subordinate Judge, before whom execution is pending accepted this contention and overruled the obiection.
2. The question is not free from difficulty and we were taken through a long line of decisions for and against the above view. We have examined the decisions carefully and we think that the weight of judicial opinion is in favour of the view that the proviso cannot apply to mortgage decrees where there is no need for attachment. The question seems to have come up for judicial consideration at least from the year 1879 in Bhagwan-das v. Hathibhai, (1879) ILR 4 Bom 25 where it was held that Section 266 C. P. C. (corresponding to the present Section 60(1)(c)) does not prohibit the sale of property specifically mortgaged albeit that the property be materials of a house belonging to or occupied by an agriculturist.'
In the judgment of the Bench it was observed:--
'We are of opinion that the sale of the house, under these circumstances should be made, for we cannot suppose that it was the intention of Section 266 of Act X of 1877 to prohibit the sale of property specifically mortgaged.'
The same view was taken by the Allahabad Hiah Court, though some judges had taken a different view in a dissenting judgment in Janaki Das v. Sandal. (1911) 9 Ind Cas 825 (All). A Bench of that court held that the sale of houses belonging to an agriculturist in execution of mortgage decree was not illegal. A Full Bench of that Court in Bhola Nath v. Kishori, (1912) ILR 34 All 25, Banerji, J. dissenting, held that:
'Section 60 C. P. C. did not operate to bar the sale of a house belonging to an agriculturist in execution of a decree on a mortgage of the same.'
The matter again came before the Allahabad High Court in Mubarak Hussain v. Ahmad, AIR 1924 All 328 (FB) where Walsh and Mukerji, JJ. (Ryves, J. dissenting) held that Proviso (c) to Section 60 C. P. C. deals with sales in execution of decrees in which a previous attachment is necessary, i. e. sales in execution of money decrees. It was expressly held that the proviso to the section did not apply to sales in pursuance of mortgage decrees directing the sale of the mortgaged property. Mukerji J. in that case stated the reasons as follows:--
'If there be an agreement between an aariculturist and a third person for the sale of the former's house and if the latter should sue for the specific performance of the contract the courts would be bound to recognise the contract and to enforce it. As the result of the enforcement of the contract, the promisee will get possession through the court, for there is no rule of law which lavs down that delivery of possession over an agriculturist's house in execution of a decree is prohibited. If then the sale by private contract be not prohibited and may be even specifically enforced in a court of law, we have to find out if a lesser contract, viz., that of mortgage is prohibited and cannot be specifically enforced. For such a proposition of law, there must be a very clear authority and any rule of law that may only by implication be read as leading to this conclusion cannot be accepted as laving down such an anomaly ....Section 60 appears under the head 'attachment' ..... In the execution of a decree for money every attachment Is not followed by sale. For example, when a money decree is attached in the execution of another money decree, the attached decree is not sold but the attached decree is executed and the money realised is applied to the satisfaction of the attaching decree. Similarly when the pay of a government servant is attached there is no sale. Only the officer charged with the disbursement of the pay is ordered to deduct a sum month by month and to pay the same towards the satisfaction of the decree. Thus a sale may or may not follow an attachment ..... The words 'attachment and sale', therefore, can only mean, 'attachment and sale where the sale is necessary after the attachment.' That this is the meaning to be attached to the words 'attachment and sale' is clear from the proviso that follows the Sub-section (1). It provides against 'such attachment or sale' in the case of certain 'particulars'. The use of the word 'such' is important. It 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 ...One essential difference in principal between a sale held after attachment, and a sale held in pursuance of a contract for sale is this that, in the former case, the sale is held against the wishes of the debtor. The court is asked to raise money by the best possible means, and it has been vested with the authority to say that it would not act heartlessly, and, in order to make the debtor pay, it would not make him absolutely destitute. In the case of a mortgage or hypothecation the debtor has agreed that a particular property might be taken as the security, so, the execution of the decree is held with his consent as it were. There is, therefore, no reason to suppose that a rule of law that talks of attachment and sale in the same breath as it were was really Intended to cover a case of a sale with the consent of the debtor.'
The learned Judges came to the conclusion that an agriculturist may make a valid mortgage of his house there being nothing in Section 60 C. P. C to the contrary and that after a decree for the sale of it has been made on foot of a mortgage, it may be sold in execution of the decree and the judgment-debtor is not entitled to raise the point in execution that the property is not, liable to be sold. It may be assumed that a creditor who takes security would not have advanced the money unless he was given security, and the debtor has failed under the agreement to take the property with his eves open knowing the consequences.
3. In Chittar Mal v. Mt. Ram Devi, AIR 1935 Lah 164 (1), which is a Bench decision it was laid down that 'there is nothing in Section 60 C. P. C., to prevent an agriculturist voluntarily selling or otherwise alienating his house, and therefore, where an agriculturist voluntarily agreed to mortgage his house, the section had no application and that the house was liable to sale in execution of the decree' The Lahore High Court in Allah Baksh v. L. Chet Ram, AIR 1945 Lah. 123 -- Full Bench of five Judges --reviewing all authorities up to that date held the same view. Learned Harries. C. J. speaking for the Bench observed:--
'Having regard to the course of decisions relating to the meaning of Section 60 C. P. C. I think that whether the decisions be right or wrong, the maxim communis error facit iust (common mistake sometimes makes law) must now be held to apply. As will be seen, there are a very large number of decisions of this court and other courts over a Ions period of years to the effect that Section 60 has no application to mortgage decrees and the effect of differing from those decisions would render numerous transactions of mortgage practically null and void. Mortgaging property is all but too frequent, and I venture to think that a decision differing from a long course of decisions to which I have referred would affect hundreds if not thousands of transactions and hundreds if not thousands of persons in this Province.'
4. Quite apart from the disastrous consequence likely to result in an attempt to disturb the above settled rule the reasons pointed out on behalf of the appellants, we do not think are persuasive enough to take a different view at this length of time. The proviso, as pointed out earlier cannot apply to execution sales, which requires no attachment for its validity. The sale under a mortgage decree, strictly speaking is not a sale in execution of the decree; it is but a sale as provided in the document of mortgage and what takes place after the decree is a satisfaction of the decree falling within Section 47 of the Code. Learned counsel for the respondent stated that in so far as the decree for sale has been passed the execution court cannot go behind the decree and, therefore, the iudament-deb-tors' contentions are beside the point and they are estopped from raisins such contentions. In other words, the argument is that if proviso (c) was held to apply to the houses of agriculturists, which he has mortgaged it would tantamount to holding that the mortgage of such house was illegal and it was open to the mortgagor in the suit to raise this objection. We do not see much force In this contention, because the objection based on the proviso if at all can arise for consideration only in the execution Proceedings and not before: the proviso as we have seen already relates to attachment and sale and that stage can arise only in execution.
5. Learned counsel for the appellants reiving on certain articles in the Journal of the International Commission of Jurists on the 'Sanctity of the Home' argued that depriving a person of his dwelling house is a violation of human rights and this court has a duty to protect and preserve such rights. We do not see any point in the argument. We are not here concerned with any broad-based human right or liberty as contemplated by the International Commission of Jurists or other bodies. We are concerned here only with the applicability or otherwise of proviso (c) to Section 60(1) C. P. C. There is no public policy as such involved in this question. Expatiating on this aspect of the question the Andhra Pradesh High Court held in Santha Kumari v. Suseela Devi AIR 1969 Andh. Pra. 355 at p. 361 that:--
'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. We have, therefore, no hesitation in agreeing with the court below that the petitioner herein waived the protection that was available to her under Section 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.'
6. So also in the case before us, the appellants must be held to have waived their rights to protection under the proviso the moment they executed the mortgage agreeing thereby to the sale of the property in execution of a decree which has eventually to be passed in the suit to be filed by the mortgagee. Without such a guarantee the decree holder would never have lent money and so long as there is no prohibition against alienation of the property by the agriculturist, he will have to suffer the natural and legal consequences that are likely to flow from the transaction. Viewed in any light the order of the learned Subordinate Judge is correct and has to be upheld We do so and dismiss both the appeals: but in the circumstances without costs.