1. The second defendant in O. S. No, 18 of 1959, Sub Court, Padmanabhapuram, is the petitioner in this civil revision petition. That suit was laid against the husband of the petitioner, the petitioner and the Indian Chit Fund (P) Ltd. for the recovery of sum of Rs. 8172-62 p. with future interest on the basis of certain overdraft facilities afforded by the plaintiff bank to the husband of the petitioner to secure the repayment of which the petitioner bad created a mortgage over her own properties. The mortgage was created by the petitioner on 21-9-1952. The husband of the petitioner and the Indian Chit Funds (P) Ltd. the subsequent encumbrancer, remained ex parte in the suit. Certain defences were put forth by the petitioner in the suit, but they were overruled and on 29-1-1960, a preliminary decree was passed declaring the amount due under the mortgage as Rs. 8172-62 p. and directing the husband of the petitioner to pay that amount as well as costs of Rs. 817-60 p. on or before 29-6-1960 failing which the plaintiff bank was directed to apply to the Court for a final decree for the sale of the mortgaged property. It is common ground that the amount was not so paid into Court by the husband of the petitioner within the time granted and that the plaintiff bank obtained a final decree on 31-1-1962 for the sale of the mortgaged property belonging to the petitioner. Subsequently, the petitioner filed 1. A. III of 1974 in O. S. 18 of 1959, under Section 19 of Tamil Nadu Act TV of 1938, for scaling down the decree on the ground that she is an agriculturist entitled to the benefits of that Act, That application was opposed by the decree holder on the ground that the petitioner is not an agriculturist entitled to the benefits of Tamil Nadu Act IV of 1938, and, therefore, no case for amending the decree under Section 19 was made out.The objections raised by the decree holder in that regard were overruled and the preliminary as well as the final decrees were amended accordingly. Thereafter, the decree holder took steps to sell the mortgaged property in accordance with the final decree to realize the amounts due thereunder. At that stage, the petitioner filed E. A. 211 of 1980 before the Sub Court Padmanabhapuram praying that the Court should pass an order to the effect that the house property brought to sale was not liable to be sold. In the affidavit filed in support of that application, the petitioner stated that the property brought to sale comprised of
house and a house site appurtenant thereto and necessary for agricultural purposes and hence no liable to be attached under Clause (c) to the proviso to Section 60(1), Civil Procedure Code. That application was opposed by the decree holder on the ground that the petitioner had no agricultural land at all and had never engaged herself in agriculture or horticulture and that neither the house nor the house site or other appurtenant land would be exempt from sale under Clause (c) to the proviso to Section 60(1). Civil procedure code. A further objection was also raised by the decree holder to the effect that the petitioner is precluded from raising this plea at this stage as such a plea had not been raised in the course of the prior execution proceedings. Consequent to the transfer of the proceedings from the Sub Court, Padmanabhapuram to the District Munsif court, Padmanabhapuram, E. A. 211 of 1980 was renumbered as E. A. 71 of 1982 and dealt with by the District Munsif, Padmanabhapuram.
2. Before the Court below, on behalf of the petitioner, P. W. I was examined and Exs. B 2 to B 4 were marked, while on behalf of the decree holder. R. W. I alone was examined. On a consideration of the oral as well as the documentary evidence, the learned District Judge found that the petitioner had not established 'that she is tilling the soil for her livelihood and that her main source of income was not agriculture and she was not depending for her maintenance on telling the soil. It was also held that Clause (c) to the proviso to Section 60(1), Civil Procedure Code, does not apply to mortgage decrees where there is no need for any attachment and that, therefore, the petitioner is not entitled to claim that the property is exempt from attachment. On those conclusions, E. A 71 of 1982 was dismissed.
3. Miss O. K. Sridevi, the learned counsel for the petitioner, contended that the petitioner had already been declared entitled to the benefits of the Tamil Nadu Act IV of 1938, as an agriculturist and that she is engaged in tilling and cultivating the land and depends for her maintenance and livelihood on tilling the soil and would, therefore, be an agriculturist, entitled to claim the benefit of the exemption engrafted in Clause (c) to the proviso, to Section 60(1), Civil Procedure Code. Strong reliance in this connection was placed by the learned counsel upon the decision of the Supreme Court in Appasaheb v. Bhalchandra, : 2SCR163 , particularly, the observations occurring in para 8 at page 593. On the other hand, Mr. P. Ananthakrishna Nair, the learned counsel for the respondent, submitted that the petitioner is not an agriculturist mainly depending upon the tilling 'of the soil for her maintenance and livelihood, that the extent of the property sought to be sold for realising the dues was nearly about an acre and that the entire extent of the property of about acre was not necessary for convenient enjoyment by the petitioner, even assuming that she was an agriculturist. Yet another fundamental objection raised by the learned counsel for the respondent is that though Section 60, Civil Procedure Code generally contemplates execution of decrees by attachment and sale of the properties belonging to a judgment-debtor, that provision is inapplicable in a case like the present where the decree itself directs the sale of the property and there is no need for an attachment prior to such sale. The learned counsel relied in this connection upon the Full Bench decision of the Lahore High Court in Allah Bakhsh v. Chet Rarn, AIR 1945 Lah 123 and Kochumariam v. Kshema Viiasam and Co., : AIR1974Ker78 . A further point was also raised by the learned counsel for the respondent, that the objection regarding the availability of the exemption under Clause (c) to the proviso to Section 60(1), Civil Procedure Code was not raised by the petitioner in the course of the prior execution proceedings and the petitioner would be precluded from raising such an objection by res judicata.
4. The question whether the petitioner is an agriculturist entitled to the benefits of the exemption under Clause (c) to the proviso to Section 60(1), Civil Procedure Code, would arise only if the decree that is sought to be executed against her is of a nature contemplated by Section 60, Civil Procedure Code, and in that context even if the petitioner is an agriculturist as claimed by her, then, she cannot avail herself of the benefit of the exemption if the very decree execution of which is sought, is outside the pate of that section. It is, therefore, necessary first to consider whether a mortgage decree is at all within the scope of Section 60, Civil Procedure Code. Section 60 is preceded by the heading Attachment and purports to set out the different kinds of properties which are liable to be attached and sold in execution of a decree. Section 60(1), Civil Procedure Code enumerates in detail, the different kinds of properties 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, as properties which can be attached and sold in execution of a decree. In Section 60(1), Civil Procedure Code, the expression 'decree' is used in a general sense without being in any manner restricted. In other words, the expression used is a decree, meaning thereby all kinds of decrees. But at the same time, there is an indication in Section 60(1), Civil Procedure Code, regarding the nature of the decrees contemplated therein. It is seen that such types of decrees for the execution of which an attachment of the property and sale thereof is necessary, alone are contemplated and not other kinds of decrees. The proviso to Section 60(1), Civil Procedure Code enumerates the different kinds of properties not liable to such attachment and, sale. The use of the expression 'such' in the proviso indicates that the attachment or sale from which the exemption is granted relates to execution of a decree. Though the expression used between the words 'attachment' and 'sale' is 'or' in the context, that expression has to be construed as 'and'; as otherwise, 'the exemption granted under the several clauses of the proviso ill have no meaning at all. The proviso operates in the nature of an exception and , catalogues such properties and fights not liable to, attachment or sale or in ether words which are neither liable to an attachment nor sale. That this is the construction to be put on the expression 'or' occurring in the proviso is clear from the decision in Rewati v. Chiranji Lal, AIR 1944 Lah 29. In that decision, it is pointed out that the expression 'attachment or sale' in the, proviso to Section 60(1), Civil Procedure Code, is meant to convey what was conveyed in the , sub-clause itself by the words 'attachment and sale'. That is to say, the word 'or' in the proviso is also used in a conjunctive and not in a disjunctive sense and that would mean that the property mentioned in the proviso to Section 60(1), Civil Procedure Code would neither be liable to attachment nor sale. Thus, the main provision of Section 60(1). Civil Procedure Code, as well as the proviso operate to enumerate the different kinds; of properties which are liable to be attached and sold in execution of a decree as well as those items of properties or particulars which cannot be so attached and sold in execution of a decree. What is common to both is 'the attachment and sale in execution of a decree. Thus as a matter of plain construction of Section 60(0), Civil Procedure Code, and The proviso thereunder, it is manifest that there is an enumeration of the different kinds of properties which are liable to be attached and sold and exempt but such enumeration is with reference to the execution of a decree by attachment and sale. In other words, Section 60. Civil Procedure Code and the proviso, thereunder would come into Play in ail cases where the decree is sought to be put into execution by praying for the relief of attachment and sale of all or any one of the items of properties enumerated under Section 60(1), Civil Procedure Code in which 1.4 case a claim relating to the non-attachability of that property May also arise
under the proviso to Section 60(1), Civil Procedure Code. Whether such would the position with reference to the execution of a. mortgage decree, as in this case, may next be considered.
5. In the case of mortgage decrees in a suit for sale, as in this case, the preliminary decree directs the payment into Court of the amount due under the mortgage decree en or before a particular date failing which the decree bolder is given the liberty to apply for a final decree for the sale of the hypotheca. In a case where the money is net so deposited or paid, on an application made in that behalf, by the decree holder, the Court passes a final decree and the sale is directed by the decree itself. The decree itself having directed the sale owing to the non-payment of the amount, there is no need or necessity to attach the property in execution of such a mortgage decree, but the property is sold through court in satisfaction of t1he decree. It would, therefore, be open to a decree-bolder to bring to sale even the properties enumerated tinder the proviso to Section 60(1). Civil Procedure Code, pursuant to the final decree for sale granted in his favour Without resorting to attachment or sale. This establishes that in cases where the sale of the property is directed by decree itself and no attachment if execution of such a decree is necessary there is no scope for invoking either Section 60(1), Civil Procedure Code, or the exemption enumerated in the proviso to Section 60(1), Civil Procedure Code. That in respect of mortgage decrees there is no need for any attachment and sale in execution of that decree is well settled by a long line of decisions. The Bombay High Court in Bhagvandas v. Hathibai , ILR (1879) 4 Bom 25, had occasion to deal with Section 266 of the old Code of Civil Procedure, and held that that does not prohibit the sale of property specifically mortgaged albeitthat the property be materials of a house belonging to or occupied by an agriculturist. The reason is given under-
'We are of opinion 'that the sale of the house, under these circumstances (namely ' that the decree directed that the debt should be recovered from the mortgaged property) 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.11'
The Allababad High Court. In Mubarak Hussain: - v. - Ahmad : AIR1924All328 held that an agriculturist can make a valid mortgage of his house in execution of a -decree in which the house may be sold, and that Section 60(1), Civil Procedure Code OT the Proviso thereunder could Dot be pleaded, in bar. In Muhammad Hussain v. Muthu Chettiar, AIR 1916 Mad 786, one of the questions that fell for consideration was, whether a mortgage decree-holder would lose his legal right to obtain a personal decree for the balance by reason of the decree-holder having attached the mortgaged properties prior to bringing them to sale in execution. It was pointed out by Sedasa Aiya, J. that the decree-holders were entitled to bring the mortgaged properties to sale in execution of the decree without an attachment, but The -fact that, they had so attached would not enable the judgment debtor to plead that the decree was not a mortgage decree for sale, but only , money decree, Ananthakrishna Aiyar, J. in Suryanarayana v. Ramachendrudu, AIR 1932 Mad 716 had occasion to consider the 'question whether having regard to Sections 5 and 132 of the Madras Estates Land Act it was open to, the Deputy Collector to entertain a claim petition relating to the charge in favour of the land holder for the rent due. It was held that a claim petition cannot be entertained by a Court which passed the usual mortgage decree directing the property to be sold in default of payment when the property is simply sou.-M to be sold in pursuance of the mortgage decree, and that it is only when the property is attached that the right to put any claim petition is given. This decision also establishes that where the decree itself directs the sale of the property, there is no need for attachment and sale. To similar effect is the decision of Vivian Bose . J. (ass he then was) in Rarnadhin v. Sheodutt, AIR 1938 Nag 544. where the learned Judges observed that Section 60, Civil Procedure, Code is limited to cases of attachment and sale and no question of attachment would arise in a mortgage suit, especially in one forclosure and so section 60, Civil Procedure Ply. A Full Bench of court in Allah Bakhsh v Chet ran AIR 1945 Lah 123 reiterated the principle that the provisions of section 60, Civil Procedure Court do not prohibit' 'the sale of property, specifically mortgaged. Though in. the, main the decision of the Full Rench proceeded upon the acceptance and.application of the maxim 'communis error facit jusyet. 'it is,'seen that-the Views of the Bombay,' Allababad and Nagpur High Courts referred to earlier, were affirmed and it was laid down that Section 60, Civil Procedure Code does net apply to mortage decrees. The Kerala High Court in Kochumariam v.Kshema VilaSam and Co, : AIR1974Ker78 considered the question of the applicability of Clause (c , ) to the proviso c to Section 60(1), Civil Procedure Code, to mortgage decrees, The weight of judicial opinion was held to be in favour of the view that the proviso does not apply To Mortgage decree where there was no need for any attachment. Thus, on a consideration of the nature of civil procedure court under Section 60, well as the scope under the proviso that under and the decisions referred to earlier a mortgage decree of the nature sought to be executed against the petitioner is clearly outside the scope of 'a decree' execution of which by attachment and sale is contemplated in Section 60, Civil Procedure Cede, and the p7,cvi-o thereunder. Therefore, the pe6lioner cannot be heard to claim the benefit of exemption under Clause (c) to the proviso to Section 60(1), Civil Procedure Code. In this view, it is unnecessary to consider either the contention the petitioner or the other contentions, of the respondent. The result is, the civil, revision petition fails and is dismissed with costs.
6. Petition dismissed.