Nigam, J. - (1.) The State of Uttar Pradesh obtained a decree for costs in a proceeding under the Land Acquisition Act against Inder Dutt Tewari. In execution proceedings this case was registered as Execution. Case No. 13 of 1954. It was prayed that the house in question be sold. Thereupon Inder Dutt Tewari filed an objection under Section 47 of the Code of Civil Procedure. This was registered as Miscellaneous Case No. 128 of 1956. The objector urged that he was an agriculturist within the meaning of Section 60 of the Code of Civil Procedure and that the house attached and put to sale was his residential house and he was in actual occupation as such. He, therefore, prayed that the house be released from attachment and sale under Section 60 of the Code of Civil Procedure, The State Government filed an objection pointing out that the objector was not an agriculturist as agriculture was not his main source of income and he did not personally till the land. It was pointed out that he owned many buildings. Two other objections were taken urging that the objector had previously mortgaged the house and that he was in possession only of a portion of the building.
(2.) On this objection the learned District Judge framed three issues : 1. Whether the objector is an agriculturist as contemplated by Clause (c) of the proviso to Sub-section (1) of Section 60 C. P. C. ? 2. Whether he occupies the building in dispute?. 3. Whether the Clause (c) of the proviso to Sub-section (1) of Section 60 C. P. C. is not applicable to the case because he has mortgaged the house to Sardar Sadhu Singh?. The learned District Judge held that mortgage was not in favour of the decree-holder and that agriculture was not the judgment-debtor's main source of living and he did not till the soil with his own hand but got it tilled through servants. The learned District Judge pointed out that, according to the objector himself, his annual income from agriculture was only 150/- a year, whereas his income from the house properties was Rs. 181/- per month, i.e., Rs. 2172/- a year. It was admitted before the learned District Judge that the objector was not the only person in occupation of his house. The learned District Judge, accordingly, dismissed the objection with costs. Against that decision, this first execution of decree appeal has been preferred by the five legal representatives of Inder Dutt Tewari. The appeal came up before a learned single Judge. He has made a reference to a Full Bench. That is how the case has come up before us.
(3.) The learned single Judge has referred to the case of Tirloki Prasad v. Kunj Behari Lal AIR 1935 All 448 and the case of Shiamlal v. Smt. Sahodra Devi, 1060 All LJ 177 : (AIR 1960 All 429) and has suggested that the difference of opinion expressed in the two decisions be reconciled. He has further stated: "But even so the authorities of other High Courts are not to be given effect to by a learned Single Judge of this Court when there are Division Bench cases of this Court to follow and to the contrary. Mr. Justice Dhavan's reasoning however cannot be brushed aside........It has to be considered whether a person, because he carries on agriculture while at the same time he is possessed of other substantial income should nonetheless be put in a protected position when other persons who have substantial income not derived from agriculture are not......... I think it is necessary that a Full Bench should be constituted to consider whether Triloki Prasad's case, AIR 1935 All 448 has been properly decided or whether Shiamlal's case, 1960 All LJ 177: (AIR 1960 All 429) is the correct decision." Section 60 of the Code of Civil Procedure so far as it is relevant for our purposes reads : 60(1) The following property is liable to attachment and sale in execution of a decree, namely, ........houses or other buildings...... .and, save as hereinafter mentioned all other saleable property, movable or immovable, belonging to the judgment-debtor.......... . Provided that the following particulars shall not be liable to such attachment or sale, namely: (a)............................ (b) tools of artizans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seedgrain as may, in the opinion of the Court be necessary to enable him to earn his livelihood as such.............. (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 and occupied by him." It is clear that under Sub-clause (c) the 'particulars' which has been exempted from liability to attachment and sale should be : (1) a house or other building; (2) It should belong to an agriculturist and (3) It should be occupied by him. There is no doubt that the 'particular' attached is a house. In this reference we are not concerned with the question whether the house is occupied by the agriculturist or not and, therefore, it is not necessary to enter into the question whether the house should be occupied by the agriculturist "as such". The question raised before us is merely as to who is an agriculturist and it is not necessary to state that in this reference we will concern ourselves only with that question.;