P. C. JAIN, J. - (1.)THIS revision petition is directed against the order dated 19th May, 1979, passed by the learned Munsif, Jalore in Execution Case No. 444 of 1974.
(2.)BRIEFLY stated the facts of the case are that non-petitioner Kastur Ram mortgaged his house to the petitioner vide registered-deed dated 12th March, 1970 and, the house was thereupon given on rent to the non-petitioner at the rate of Rs. 50/-per month. A suit for recovery of rent was filed by the petitioner against the non-petitioner and on compromise the suit was decreed and later on an execution petition was filed for the recovery of rent amounting to Rs. 2084. 25. In the execution proceedings, the decree-holder petitioner got attached the house situated in Jalore, A notice for auction of the house was served under Order 21 Rule 66, C. P. C. The non-petitioner filed a petition contending that the house is not attachable under Sec. 60 (c), C. P. C. as the said house is being used for keeping agricultural material. The learned Munsiff, Jalore after recording the evidence and appreciating the contentions raised by both the parties released the house from attachment. Consequently, this revision petition has been filed.
The main contention that has been agitated in this revision petition is that a house belonging to an agriculturist is liable to be sold in execution of a decree for arrears of rent obtained on the basis of mortgage with possession of that house. Mr. I C. Mehta, learned counsel for the decree-holder submitted that clause (c) of Sec. 60, C. P. C. will not apply to a case where an agriculturist mortgages his house with possession to another, as he is in occupation as a tenant under the mortgage. He submitted that the reason being that the clause contemplates occupation by an agriculturist as an owner and not as a tenant. To substantiate his contention, he placed reliance on K. Santha Kumari vs. K. Sushiladevi (1), Radha Kishan vs. Naiku (2) and Ramdhin vs. Sheo Dutta (3 ). In the later case, the Nagpur High Court has laid down that the protection given under Sec. 60, IPC is for the benefit of the debtor and can be waived by him. Thus, if the debtor chooses specifically to mortgage his agricultural house, he must be taken to have waived the privilege conferred on him by this section. In K. Shantha Kumari vs. K. Shusheeladevi (1), the Andhra Pradesh High Court observed that the proviso to Sec. 60 is per se applicable to all decrees including decrees obtained on the strength of mortgage executed by agriculturists in respect of their houses. There cannot be any absolute prohibition against sale of an agriculturist's house since he can waive his right under Sec. 60, C. P. C. . It was also observed that the prohibition contained in Sec. 60 (1) (c) is not based on public policy. It is simply intended to afford protection to an agriculturist from being deprived of a house to live in. It is inapplicable to cases in which agriculturists choose to hypothecate their houses and suffer decrees in suits brought on the basis of those mortgages as they should, in such circumstances, be deemed to have waived the benefit of Sec. 60 (1 ).

The Radhakishna's case (supra) the Audh Chief Court held that Sec. 60 (1) (c) will not apply as the said clause contemplates occupation by an agriculturist as an owner and not as a tenant. Mr. I. C. Mehta further submitted that the house in question is situated in a town and as such, it should be taken that it is not being used for the purpose of agriculture. To substantiate his argument, he placed reliance on Ambiah vs. A Mallanna (4) and Ras Behari vs. Chota Nagpur Bkg. Asson. (S ). In Ras Behari's case (supra) the house was situated in a town, but the evidence in the case was that the owner never came back at night with his labourers and cattle to the house from the land which was only two miles away. In such circumstances, it was held that the house was not for purposes of agriculture and having regard to such situation it could never be selected by an agriculturist for agriculture within the meaning of s. 60, C. P. C. In Ambiah's case (4), the Andhra Pradesh High Court held that the intendant of clauses (b) and (c) being to give protection to persons who are real tillers of the soil and depend upon agriculture for their living; it is necessary that there should be a nexus between the agricultural implements etc. On the one hand and agriculture on the other hand and similarly in the case of a house, between the house on the one hand and agriculture on the other, to claim the benefit of these clauses. Therefore, it is only the articles used or that may be used for agricultural purposes and the houses occupied for the purpose of cultivating the land that can be exempted under Sec. 60 (c ). Controverting the submissions made by Shri I. C. Mehta, the learned counsel for the petitioner decree-holder, Shri Kewal Chand Samdaria, learned counsel for the non-petitioner submitted that the view taken by the Andhra Pradesh High Court, Audh Chief Court and Nagpur High Court is not correct, as this is contrary to the view expressed by our own High Court. He placed reliance on Inderraj vs. Parasram (6 ). He also takes support from Dulla vs. Ram Chand (7 ). In Inder Raj vs. Paras Ram, this Court accepted that judicial opinion is divided, in some case a view has been taken that the judgment-debtor can waive the benefit of Sec. 60, C. P. C. , on the other hand, there are cases wherein it has been held that Sec. 60 is mandatory and is based on condition of public policy and, therefore, it is not open to the judgment-debtor to waive the protection which the statute gives him. After discussing the various authorities cited at the Bar, the learned Single Judge of this Court held that the view taken that the benefit under Sec. 60, C. P. C. cannot be waived, is based upon sound seasons 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, if not altogether nugatory. In Dulla vs. Ram Chand (7), the Lahore High Court observed that the mere fact that the judgment-debtor has mortgaged the house with possession, would not disentitle him to the protection afforded by Sec. 60 (1) (c), C. P. C.

The relevant part of sec. 60 (1) (c), C. P. C. is produced for ready reference : - " (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a Labourer or a domestic servant and occupied by him. " Such property is not liable to attachment or sale as per the provisions contained in Sec. 60. It has been held by the Audh Chief Court in the case referred to above, that such clause will not apply to the cases where an agriculturist mortgages his house with possession to another who is in occupation as a tenant. Under the aforesaid clause it is contemplated that occupation by an agriculturist should be as of owner and not as tenant. While a contrary view has been taken by the Lahore High Court. The words "occupied by him" may be meant for using for agricultural purposes. Thus, the word "occupied" as appearing in Sec. 60 (1) (c) is relevant for our consideration. It is not necessary that the house should be a dwelling house of the agriculturist provided that it is occupied by him as an agriculturist. The words "occupied by him" have been considered in Ambiah vs. A Mallanna (Supra ). After considering the entire scope of Sec. 60 (1) (c), the learned Court observed that exemption can be claimed only in regard to the houses which are occupied for the purpose of cultivating the land. From the evidence on record, as per the finding arrived at by the executing court, the house is occupied by the judgment-debtor as an agriculturist and, he is using the house for that purpose and that his main source of livelihood is agriculture Under such circumstances, it can safely be said that the dwelling house of the judgment-debtor is being occupied by him and, thus he is entitled to the protection which is conferred by Clause (c) of the said section.

As regards waiver, the view expressed by our High Court that Sec. 60 grants protection on consideration of public policy and the protection cannot be waived, otherwise it will have the effect of making the provisions highly ineffective, is perfectly correct and I am in agreement with the proposition of law laid down in Inder Raj vs. Paras Ram (Supra ).

(3.)IN view of the above discussion, I am of the view that the house of the judgment-debtor is not liable to be attached in Execution Case No, 444/1974. The revision petition is accordingly dismissed and the order of the executing court is affirmed. The parties shall bear their own costs. .