IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 OP(C).No. 2158 of 2011(O) ------------------------- CMA.73/2010 of DISTRICT COURT,KOZHIKODE IA NO.1138/2010 IN IP.1/2001 of SUB COURT, QUILANDY .................... PETITIONER: --------------------- PATHAPILAKKOOL ARYA DEVI, AGED 49 YEARS, D/O. MADHAVI AMMA, KUNNATHARA AMSOM, OLLUR DESOM, KOYILANDY TALUK, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ---------------------------- 1. ASSISTANT SECRETARY, KERALA STATE HOUSING UNIT, CHAKKORATH KULAM, KOZHIKODE-6. 2. SECRETARY, NADUVANNUR REGIONAL SAHAKARANA BANK, NADUVANNUR, KOYILANDY TALUK, KOZHIKODE-673 305. 3. PUTHIYOTTIL MEETHAL BALAKRISHNAN NAIR, S/O. KALLIANI AMMA, AGED 48 YEARS, ARATTANKANDI MEETHAL, KUNNATHARA AMSOM, OLLUR DESOM, KOYILANDY TALUK, KOZHIKODE-673 305. 4. KUZHIPARAMBIL MEETHAL PRABHAKARAN NAMBIAR, S/O. SEKHARAN NAIR, AGED 33 YEARS, KUNNATHARA AMSOM, OLLUR DESOM, KOYILANDY TALUK, KOZHIKODE-673 305. 5. THE VILLAGE OFFICER, ULLIYERI, KUNNATHARA, KANNOORE DESOM, KOYILANDY TALUK, KOZHIKODE-673 305. 6. TAHSILDAR, REVENUE RECOVERY, VADAKARA, KOZHIKODE DISTRICT-673 101. 7. GOVERNMENT OF KERALA, REP. BY DISTRICT COLLECTOR,KOZHIKODE CIVIL STATION, MALAPPARAMBU, KOZHIKODE DISTRICT-673 020. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2158/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN I.A.1138/2010 IN I.P.1/2001 OF SUBORDINATE JUDGE, KOYILANDY. P2: COPY OF THE ORDER IN CMA 73/2010 OF DISTRICT JUDGE, KOZHIKODE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2158 of 2011 ==================================== Dated this the 12th day of July, 2011 J U D G M E N T Petitioner sought her adjudication as insolvent in I.P. No.1 of 2001 of the court of learned Sub Judge, Koyilandy and in that proceeding filed I.A. No.1138 of 2010 to exclude the house where herself and family are staying, from sale on the ground that she is a domestic servant and in view of Section 60(1)(c) of the Code of Civil Procedure (for sort, “the Code”) the dwelling house of a domestic servant is not liable to be sold. Learned Sub Judge dismissed that application which the learned Additional District Judge, Kozhikode confirmed in C.M.A. No.73 of 2010. The said judgment and order are under challenge in this petition. Learned counsel contended that in view of Section 28(5) read with Sec.63(2) of the Insolvency Act (for short, “the Act”) and Sec.61(c) of the Code it is clear that petitioner being a domestic servant, her dwelling house is not liable to be sold by the Receiver. Learned counsel placed reliance on the decision of the O.P(C) No.2158 of 2011 -: 2 :- Supreme Court in Ram Lal v. Piari Lal (AIR 1973 SC 2124). 2. Section 63(2) of the Act says that nothing in the said provision shall affect any other law prohibiting or restricting execution of the decree or order against immovable property of the insolvent. Sub-sec.(5) of Sec.28 says that the property which is otherwise exempted from attachment is not to be treated as property of the insolvent. True, under Sec.61(c) of the Code the dwelling house of a domestic servant is exempt from attachment and petitioner has a contention that she is a domestic servant. But question of application of Sec.61(c) of the Code does not arise since it is admitted that the property of petitioner including the dwelling house and appurtenant land is subject to a mortgage in favour of the first respondent as per document No. 2876 of 1996 of SRO, Chemancherry. Since the property including the dwelling house is subject to a mortgage as aforesaid question of application of Sec.61(c) of the Code does not arise since no question of attachment is involved. Sub sec.(5) of Sec.28 of the Act deals with O.P(C) No.2158 of 2011 -: 3 :- exemption of property which is liable to attachment and sale under the provisions of the Act. In the present case question of attachment is not involved since the property including the dwelling house is mortgaged to the first respondent. The decision relied on by the learned counsel cannot save the situation since that decision dealt with properties which are exempted from attachment. In that view of the matter I do not find any illegality or irregularity in the judgment and order of the courts below. Original Petition fails and it is accordingly dismissed. THOMAS P. JOSEPH, JUDGE. vsv