IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 25926 of 2008(J) -------------------------- AGAINST THE ORDER DATED 11/07/2008 IN EP 349/05 IN AC.92/2001 of MUNSIFF COURT, THALASSERY .................... PETITIONER(S): ------------------------- SHYMALA,W/O. PRABHAKARAN, ANURUDHAN NIVAS, P.O.UMMENCHIRA,TELLICHERRY, KANNUR DISTRICT. BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENT(S): ---------------------------- SREE GOKULAM CHIT & FINANCE COMPANY (P) LTD., BY P.A. HOLDER-K.V.UNNIKRISHNAN, BUSINESS MANAGER,IRITTY BRANCH,P.O.IRITTY, PIN 670 703. BY ADVS. MR.K.S.BABU, SMT.N.SUDHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25926/2008 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTICE OF ATTACHMENT ALONG WITH THE SCHEDULE OF PROPERTY IN E.P.349/2005 DTD. 11/09/2007. P2: COPY OF THE PASS BOOK SHOWING REGISTRATION OF THE PETITIONER AS AN AGRICULTURAL LABOURER UNDER THE KERALA AGRICULTURAL WORKERS WELFARE FUND SCHEME 1970. P3: COPY OF THE DEPOSITION OF PW1 BEFORE THE COURT BELOW. P4: COPY OF THE ORDER IN E.P.349/2005 IN A.C.NO.92/2001 ON THE FILE OF THE MUNSIFF COURT, THALASSERY DTD. 11/07/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 25926 OF 2008 J ```````````````````````````````````````````````````` Dated this the 6th day of July, 2009 J U D G M E N T The writ petition is filed by the judgment debtor in E.P.No.349/05 in A.C.No.92/01 on the file of the Munsiff Court, Thalassery. An award passed in arbitration proceedings against the judgment debtor and in favour of the decree holder was put in execution before that court, in which the property of the judgment debtor having an extent of 6 cents comprising a building was proceeded against for satisfaction of the decreed amount. The judgment debtor claimed exemption from attachment and sale of the property contending that she is an agricultural labourer and, thus, entitled to the exemption given under section 60(c) of the CPC. To substantiate her claim for such exemption, she produced the pass book issued in her name by the Kerala Agricultural Workers Welfare Fund, 1998, and examined the Welfare fund officer as PW1. No counter evidence was let in by the decree holder. The learned Munsiff, after considering the claim of exemption raised by the judgment debtor from sale of her property WPC.25926/08 : 2 : in execution under section 60(c) of the CPC, with reference to the evidence let in by enquiry, came to the conclusion that she has not established the case so canvassed and thus not entitled to get the property exempted from the liability to be sold in execution of the decree. Ext.P4 is the copy of the order. Impeaching the propriety and correctness of Ext.P4 order, the petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. The materials placed by the petitioner are sufficient to show that she is an agriculture labourer and thus entitled to get exemption of her property comprising the building, wherein she is in occupation from attachment and sale in execution of the decree, is the submission of the learned counsel for the judgment debtor. On the other hand, the learned counsel for the decree holder would contend that other than producing a pass book and examining the welfare fund officer, whose evidence was found not worthy of any merit by the execution court, she has not proved her claim as an agriculturist or agricultural labourer and, so much so, Ext.P4 order passed by the court is unimpeachable. Reliance is also placed by WPC.25926/08 : 3 : the learned counsel for the decree holder in Esthappanose Vs. Devamatha Kuries [1999 (2) KLT 793] to contend that the burden is on the judgment debtor to establish facts demonstrating that she is entitled to exemption of her property from attachment and sale under section 60(1)(c). No such evidence has been produced in the case and the execution court was perfectly correct in coming to a conclusion that she cannot claim exemption from attachment and sale as an agriculturist and labourer, submits the counsel. 3. Having heard the counsel on both sides at length and also taking note of the facts and circumstances presented with reference to Ext.P4 order, I find the question whether the judgment debtor is an agriculturist or an agricultural labourer has not been properly and correctly appreciated by the execution court with reference to section 60(1)(c) of the CPC. She has produced a pass book obtained after filing of the execution petition is taken exception by the learned Munsiff to hold that her claim is not bona fide. She need only show at the time when her property is sought to be attached and brought to sale that she is entitled to exemption as an agriculturist or an agricultural labourer or a domestic servant as covered under section 60(c) of the CPC. WPC.25926/08 : 4 : Previously, before the amendment brought in by Act 104 of 1976, exemption covered by section 60(c) was applicable only to an agriculturist whose main income was from his involvement by labour in agriculture. He need not cultivate in his land but do so in the land of some one else, but his main income for livelihood should be from agriculture to get the benefit of exemption. But, after the amendment, a labourer or a domestic servant, including a skilled worker like a mason also come within the scope of section 60(c) of the CPC entitled to the protection to have exemption from attachment and sale of his property in execution of a decree. Such being the position of law, when a claim for exemption under section 60(c) is moved, production of a certificate obtained after the execution petition showing that the judgment debtor is an agricultural labourer does not in any way defeat the claim of exemption. The question is whether the main source of livelihood of the judgment debtor who claimed such exemption is from her engagement as an agriculturist or labourer or a domestic servant. True, the judgment debtor has not mounted the box to give evidence in support of her case. She has examined the welfare fund officer as PW1 to support and give credence to the pass WPC.25926/08 : 5 : book issued to her showing that she is an agricultural labourer. But, at the same time, it has to be noted the evidence tendered by the judgment debtor remains unchallenged. No counter evidence was let in by the decree holder to show that the judgment debtor has other sources of livelihood and she is not mainly depending upon her labour in agriculture. That being so, I find the interest of justice demand that one more opportunity should be given to the judgment debtor to prove her case that she is entitled to exemption under section 60(1)(c) of the CPC. The decree holder can also give evidence, if so desired, to show that she is not entitled to exemption as an agriculturist or agricultural labourer, and she has other source of income, and she is not depending mainly on the income from agriculture or agricultural labour for her livelihood. Ext.P4 order is set aside and the learned Munsiff is directed to examine the question afresh in accordance with law. Writ petition is disposed as above. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks