Decided on November 24,1960

INDER RAJ Appellant
PARAS RAM Respondents

Referred Judgements :-


Cited Judgements :-



CHHANGANI, J. - (1.)THIS is a decree-holder's second appeal under sec. 100 read with sec. 47 C. P. C.
(2.)THE facts giving rise to the appeal are briefly these: - THE appellant obtained a decree against the respondent for Rs. 1529/- on 22nd May, 1953. An application for execution - of the decree was filed on 19th October, 1954. A house belonging to the judgment-debtor was attached. THEre was however a compromise between the parties on 26th February, 1955 under the terms of which the judgment-debtor agreed to pay the decretal amount in instalments. It was also agreed between the parties that the house shall remain under attachment. THE execution application was dismissed in terms of this compromise. THE judgment-debtor failed to pay the instalments agreed to be paid and |eventually the decree-holder filed a second application for execution on 2nd December, 1955. THE judgment-debtor originally raised some objections alleging payment of certain amounts towards the decree. THEse objections were not successful. Later on, by means of an application, he raised an additional objection on 10th May,1956 that the judgment debtor being an agriculturist, the house is not liable to attachment and sale. THE execution court dismissed the objection holding that the judgment-debtor is not an agriculturist. In an appeal, the Civil Judge, Ganganagar took a different view. He held that the evidence led by the parties clearly proved that the judgment debtor is an agriculturist. He also held that previous compromise, between the parties in which the judgment debtor was given some concession in the form of payment by instalments and under which the judgment-debtor agreed to the continuance of the attachment, did not estop the judgment-debtor from objecting to the attachability and the sale of the property. THE Civil Judge consequently accepted the appeal and allowed the objection. THE decree-holder has come up in second appeal.
In the first instance, Mr. Badri Dass appearing for the decree-holder has challenged the finding of the first appellate court that the judgment-debtor is an agriculturist. This is a pure question of fact and I do not feel persuaded to disturb this finding of fact in second appeal. There is evidence in support of the finding and no ground has been shown how this finding can be assailed in the second appeal. Realising the difficulty of challenging the finding of fact he concentrated mainly on the legal argument. He contended that S. 60 is intended for the benefit of the judgment-debtor and it is quite competent for him to waive the benefit under sec. 60. The judgment-debtor having initially agreed to the continuance of the attachment and on that basis having secured concession in the form of payment of the decretal amount by instalments, he should not be permitted to resile from that agreement and to plead exemption from attachment and sale of property. The question of law raised has been the subject matter of judicial determination in a number of cases. The judicial opinion is divided. There are spine cases in which a view has been taken that the judgment-debtor can waive the benefit under sec. 60. On the other hand, there are number of cases where it has been held that sec. 60 is mandatory and is based on consideration of public policy and therefore it is not open to the judgment-debtor to waive the protection which the statute gives him and the agreement or the compromise which has that effect is not enforceable in law and is therefore void. The latter view seems to have been taken up in a number of cases,namely, S. Harnamsingh Gurmukh Singh Vs. Ramji Das Pohlumal and another (1), Ramnaresh and another Vs. Ganesh Mistri (2) and Karra Lakshminarasimhavva Vs. Sri Mahant Prayag Dassjee Varu (3 ).

After going through the various cases cited at the Bar, I have come to the conclusion that the view taken in the latter cases is based upon sound reasons and deserves to be preferred. Sec. 60 grants protection from attachment and sale of certain properties on certain considerations of public policy. The provisions are indeed mandatory and a view that the protection can be waived, will have the effect of making the provision highly ineffective 11 not altogether nugatory. Expressing my concurrence with the view taken in these cases, 1 hold that the judgment-debtor cannot be pinned down to any agreement in which he has at any earlier stage agreed, to the attachment or even sale of the property declared exempt from attachment and sale under sec 60 of the Code of Civil Procedure.

The decision taken by the lower appellate court is correct and calls for no interference. The appeal is dismissed. In the circumstances of the case, the parties are left to bear their own costs. Leave to appeal is granted. .


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