V.S. Vasudevan vs The Federal Bank Ltd.

Pius C. Kuriakose, J.—Ext. P6 order passed by the execution court dismissing an application submitted by the petitioner, the 2nd judgment-debtor that his property be executed from sale on the ground that he is an agriculturist who is cultivating the property in question and is depending for the income derived from such cultivation for his livelihood is under challenge.

Heard both sides. Mr. Shoby K. Francis, learned Counsel for the petitioner submits that the learned Subordinate Judge did not grant an effective opportunity to the petitioner for adducing evidence for substantiating the contention that the petitioner''s property is not liable to be sold. According to me, no useful purpose would have been served even if the petitioner had been permitted to adduce evidence to substantiate his case that he is an agriculturist. It is to be noticed that exemption which is given u/s 60(1)(c) of the CPC is exemption from attachment and sale. In the instant case the decree under execution is a mortgage decree and as held by the Division Bench of this Court in Kochumariam Vs. Kishema Vilasam Co., Section 60(1)(c) does not have to do with mortgage decrees but deals only with attachments and sales pursuant to attachment. When there is a mortgage, there is no necessity for attachment either in execution or on the original side.

The petitioner has another difficulty. His case is that he is an agriculturist who is cultivating the property. What is exempted u/s 60(1)(c) is not the agricultural property of the agriculturist, instead it is the houses and other buildings under the ownership and occupation of the agriculturist and their sites together with materials. Agricultural properties as such are not exempted u/s 60(1)(c).

In the above view of the matter, I do not find any warrant for interfering with Ext. P6. However considering the complaint of the petitioner that the respondent Bank is showing hostile discrimination against him by not proceeding against the other items of properties shown in the decree schedule belonging to other judgment-debtors, even as I confirm the impugned order and dismiss the Writ Petition, there will be a direction to the respondent Bank to take simultaneous steps for bringing the other properties covered by the decree also to sale in view of the above direction actual sale of the petitioner''s properties will not be conducted for another four more months from today.

The Writ petition is dismissed subject to the above directions. No costs.