Hamza vs Abdu

Harun-ul-Rashid, J.—Ext.P4 order passed by the learned Munsiff, Pattambi in E.P. No. 58/2008 in O.S. No. 119/2004 is under challenge. Petitioner herein is the decree holder in O.S. No. 119/2004. He filed E.P. No. 58/2008 for execution of the decree passed in his favour. The petition was filed for attachment and sale of the petition schedule property. The petition schedule property is having an extent of 4 cents of land with residential building belonging to the defendant. Execution court held that the property is not liable for attachment and sale. It is stated that the judgment debtor is entitled to protection u/s 60(c) of the Code of Civil Procedure. The execution court dismissed the petition filed by the decree holder stating that the property is not liable to the attached in execution of the decree as prayed in the petition. The execution court further held that the protection u/s 60(c) is available not only to agriculturists, labourers or domestic servants as laid down in the section, but, also available to the judgment debtor.

The judgment debtor has no case that he is an agriculturist or a labourer or a domestic servant. Ext.P3 is the objection filed by the judgment debtor. He has not claimed the protection u/s 60(c) of the Code of Civil Procedure. The execution court wrongly took the view that Section 60(c) protection is available not only to agriculturists, labourers and domestic servants, but to others also. The interpretation placed by the learned Munsiff is strange. He cannot read Section 60(c) beyond what is stated therein and expand its scope. Moreover, the application is dismissed in limine even without affording opportunity to both sides to substantiate their case. So long as the judgment debtor has no case that he is an agriculturist or labourer or a domestic servant, he is not entitled to protection u/s 60(c) of the Code of Civil Procedure. The dismissal of the petition for attachment and sale of the petition schedule property is unsustainable in law and the impugned order was passed by an exercise of erroneous jurisdiction vested with the Munsiff Court. In the circumstance, Ext.P4 order is set aside. The execution court is directed to consider E.P. No. 58/2008 and dispose of the matter on merits in accordance with law.

The writ petition is allowed.