1. The question in this appeal is whether the sale of the appellant's house in execution of a money decree against him can be set aside on the ground that under Section 60(1)(c), Civil P. C, a house in the occupation of an agriculturist is exempted from attachment. The lower Court held that in view of the conduct of the appellant in not claiming his rights on two prior applications, first at the time when the property was attached, and secondly when the property was brought to sale, be cannot raise the objection now after the property has been brought to sale.
2. There can be no doubt that if a person during the course of execution proceedings does not raise an objection to the sale of property which, if raised, would prevent the property from being brought to sale, he is debarred by the principle of constructive res judicata from raising that same objection either in subsequent proceedings or at a subsequent stage in the same execution proceedings. The learned advocate for the appellant, however, seeks to distinguish this ease by contending that there is an absolute bar laid down in Section 60 (1) (c), Civil P.C., based on public policy which renders the sale of any house occupied by an agriculturist void. He has quoted Aidal Singh v. Khazan Singh : AIR1930All727 in support of his contention. That was a case in which the sons of an agriculturist in a subsequent suit con-tended that the sale of an ancestral house in which their father had been living and which had been brought to sale in execution of a decree against the father was absolutely void. The learned Judges held that as the sons had an independent cause of action they could bring a suit. They further held that in any event there was an absolute prohibition under Section 60 (1) (c) against the sale of an agriculturist's house and that the sale therefore was void. The same questions, however, arose in a subsequent case before a Full Bench of the same High Court in Thakur Din v. Sitaram : AIR1939All399 and the learned Judges on both points disagreed with the learned Judges in Aidal Singh v. Khazan Singh : AIR1930All727 . They held that when the house was sold, the father represented not only himself but also his sons; and also that as the father had not raised the objection at the first opportunity, he and his sons were debarred by the principle of constructive res judicata from raising the point in subsequent proceedings.
3. It is said that there is no direct decision on this question in this High Court; but a very similar question arose in Somasundaram v. Kondayya A.I.R. 1926 Mad. 12 in which was raised an objection to the sale of an inalienable inam that was not raised during the execution proceedings, with the result that the inam was sold. One of the learned Judges, Venkatasubba Rao J. said:
It was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff's suit should on that ground be dismissed. I cannot follow this contention. As I have said, we are not here concerned with the true, facts of the case but only with the result of certain proceedings. Is the defendant to be permitted to plead that the land was inalienable at the time of the Court sale? The effect of the order confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property can be sold.
4. We consider this principle to be applicable to the case bow under consideration. If it was obvious to the executing Court that the decree-holder was seeking to bring to sale a house in the occupation of an agriculturist, there might be a ground for argument that the Court acted without jurisdiction in selling it; but the question whether a particular house is a house in the occupation of an agriculturist is a question of fact. If there is nothing before the Court to show that the house sought to be sold is a house in the occupation of an agriculturist, it cannot be said that the Court acted without jurisdiction in selling that house The learned advocate for the appellant refers to Ramakrishnamma v. Venkatasubbiah A.I.R. 1935 Mad 252, in which, he says, a different view of this question was taken. The learned Judges were there primarily concerned with the question whether a dasabandham service inam was absolutely inalienable; but at the end of their judgment they said:
We must hold that lands burdened with a dasabandham service, which is a service of a public nature, are inalienable as being against public policy and, being inalienable, cannot be sold in execution of a decree against an inamdar. The lower appellate Court also found that estoppel cannot be relied upon to defeat a prohibition in law on the ground of public policy. No argument to the contrary was addressed to us by the appellant upon this point and that question therefore does not arise in this appeal.
5. The question whether the failure of the judgment-debtor to raise an objection before the sale would operate as res judicata against him if the same point were raised after the sale, did not come up for consideration. Even if, however, it be considered that Ramakrishnamma v. Venkatasubbiah A.I.R. 1935 Mad 252 is an authority for the position that the sale of a dasabandham inam is absolutely void, a dasabandham inam can be distinguished from an agriculturist's house because, as the learned Judges point out in that case, it is a matter of public policy not to permit the sale of an inalienable inam; for the result would be that the service would become severed from the land; but we cannot find the same public policy behind the enactment in Section 60 (1) (c), Civil P.C. That section was undoubtedly enacted in order to protect agriculturists, in order that they might pursue their avocation despite the fact that there were decrees against them; but the protection can be waived by the agriculturists. The learned District Judge has quoted cases in his judgment in which it was laid down that an agriculturist can waive his right under Section 60, Civil P.C.; and it is not denied by the learned advocate for the appellant that he can do so. If an agriculturist can waive his right under Section 60, then it seems to us to logically follow that there cannot be any absolute prohibition against the sale of an agriculturist's house and that there is therefore no bar to the application of the principle of constructive res judicata. More-over, the fact that Section 60, Civil P.C., prohibits only the attachment of an agriculturist's house and does not prevent an agriculturist from selling his house privately if he so wishes, is an indication that there is no public policy against the alienation of an agriculturist's house. The appeal fails and is dismissed with costs.