*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.No.3063 of 2007 % 21.01.2011 Between: #Komarti Ramu … Petitioner Vs. $Bhupathiraju Anasuyamma … Respondent ! Counsel for the petitioner: Sri K. Chidambaram Counsel for the Respondent: Sri C. Ganesh Singh <Gist: >Head Note: ? Cases referred: Nil THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.3063 of 2007 Date: .01.2011 Between: Komarti Ramu … Petitioner/ Respondent/JDR AND Bhupathiraju Anasuyamma … Respondents/ Petitioner/DHR THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.3063 of 2007 ORDER: When the execution petition for the sale of the attached property of the judgment debtor in E.P.No.165 of 2006 on the file of the Principal Junior Civil Judge, Tadepalligudem was ordered, through the impugned order, the judgment debtor laid the present revision assailing the impugned order. 2. The decree holder obtained a decree in O.S.No.255 of 2002 for a principal sum of Rs.9,500/- and for the total sum of Rs.19,372.15. She laid the present execution petition under Order 21 Rules 64 and 66 of the Code of Civil Procedure (for short ‘CPC’) to sell the petition schedule property for the realization of the decretal amount. The schedule property is a terraced house in 194 square yards of site in R.S.No.62 of 2002 at Ganapavaram, West Godavari District. The schedule itself described that the judgment debtor has been in possession of the EP schedule property. The decree holder valued the property at Rs.1,00,000/-. The Amin (Field Assistant) valued the property at Rs.80,000/-. 3. Notice was issued to the judgment debtor. The judgment debtor laid counter contending that he is an agricultural labourer and that the property under attachment, therefore, is exempt under Section 60 CPC so much so the same is not liable for sale. The execution Court recorded the evidence on both sides. The decree holder examined herself as PW.1. She did not choose to mark any document in support of her contention. The judgment debtor examined himself as RW.1. He examined two other witnesses. He marked Ex.R.1, which is a ration card and Ex.X.1 through RW.3, which is a copy of the Register showing the list of ration card holders. Holding that the judgment debtor admitted that he is a tailor by profession, that he is not an agricultural labourer and that consequently he is not entitled to the benefits u/s.60 CPC, the execution Court overrulled the objections raised by the judgment debtor and ordered for the sale of the EP schedule property. Aggrieved by the same, the present revision is laid. 4. The EP schedule shows that the petition schedule property is a residential house. Sri K. Chidambram, learned counsel for the judgment debtor/revision petitioner drew my attention to Section 60 (1)(c) CPC contemplating that houses and other buildings belonging to an agriculturist or a labourer or a domestic servant and occupied by him are exempt from attachment and sale in execution of a decree. Section 60(1)(C) envisages two conditions, viz., the houses or other buildings must be belonging to an agriculturist, a labourer whether agricultural labourer or otherwise, or a domestic servant. This is the first condition. The second condition is that such an agriculturist, labourer or domestic servant, as the case may be, must have occupied the same. It may also be noticed that the Code of Civil Procedure used the word ‘occupied’, but has not used the phrase ‘is residing or has been residing’. It would appear that the intention of the codifiers is that as long as the person is in occupation of a premises whether he has been residing there or otherwise, the property falls within the mischief of Section 60(1)(c) CPC. Evidently, there is a distinction between the residence and occupation. Residence, in fact, is only one mode of occupation. So long as the agriculturist or labourer or the domestic servant is in occupation of a premises owned by him, such houses or buildings stand exempted by Section 60 CPC. This is the basic aspect on which the learned counsel for the petitioner has been relying upon. 5. Sri C. Ganesh Singh, learned counsel representing the decree holder submitted that the whole decretal amount is for less than Rs.20,000/-, that the judgment debtor, in fact, has deposited 50% of the decretal amount when conditional stay was granted in the present revision, that the decree holder has already withdrawn the same and that the amount due is about Rs.10,000/- only. His claim is that the judgment debtor is not an agriculturist, that the property is not agricultural property and that the same is not exempted u/s.60 CPC. The decree holder asserts that the judgment debtor is a well off person and has been a tailor earning considerable monies. It is also the case of the decree holder that the son of the judgment debtor is a welder and that the judgment debtor is capable of discharging the decretal amount. 6. The basis of the claim of the judgment debtor-revision petitioner is that the judgment debtor has been recognized as an agricultural labourer and that as he admittedly has been an occupant of the EP schedule property as residing in the same, the EP schedule property is exempt from attachment and sale. 7. The decree holder who has examined herself as PW.1 claimed that the judgment debtor has been a tailor, that he has been running a tailoring shop and that he was never an agricultural labourer. She further deposed that the schedule property consists of two portioned terraced building, that the judgment debtor was realizing a monthly rent of Rs.1,000/- from one of the two portions of the EP schedule premises till a short time before the institution of the execution petition and that the two daughters of the judgment debtor who are in Kuwait have been sending money to the judgment debtor. She also deposed that the son of the judgment debtor has been maintaining a welding shop. 8. The judgment debtor admitted that his son has been running a welding shop. He did not whisper that his children have been maintaining him. On the other hand, he totally denied the claim of the decree holder that the judgment debtor is a tailor. 9. The judgment debtor, who deposed as RW.1, contended that he used to stitch clothes during night time to generate more money for his livelihood and that he was basically an agricultural labourer. Apart from contending that the judgment debtor was a tailor or has been a tailor, the decree holder has not adduced any evidence to support his stand. The learned counsel for the decree holder tried to show that the judgment debtor admitted that he has been working as a tailor. The judgment debtor never admitted that he has been working as a tailor. He merely claimed that he used to work (which perhaps means that he worked for a short time) as a tailor during night time by stitching clothes of children. He asserted that he had been an agricultural labourer. Thus, there is no evidence to show that the judgment debtor was a tailor and more important, he was not an agricultural labourer. 10. Admittedly, the initial burden rests upon the judgment debtor in this case where he asserted that he is an agricultural labourer and that the EP schedule property is exempt from attachment u/s.60(1)(c) CPC. Discharging his burden, the judgment debtor examined himself and marked Ex.R.1. He also examined RW.3 and marked Ex.X.1 confirming Ex.R.1. 11. Ex.R.1 is an old ration book. It stands in the name of the judgment debtor. The names of two daughters of the judgment debtor were scored off in Ex.R.1. The new photograph patently was attached in the first page of Ex.R.1. It is the case of the learned counsel for the decree holder that Ex.R.1 passbook did not belong to the judgment debtor and that it was brought up for the purpose of the present case. There are corrections in the second page of the original ration card. Admittedly, the photo on the first page of Ex.R.1 is a relatively recent one. Added to it, the father’s name of the holder of the passbook appears to have been overwritten. On an overall examination of pages 1 and 2 of the passbook under Ex.R.1, the learned counsel for the decree holder contended that Ex.R.1 passbook was brought up by the judgment debtor to suit his claim and that the ration card belonged to someone else. 12. To explain and confirm that Ex.R.1 belonged to the judgment debtor, the judgment debtor examined RW.3. RW.3 is the Tahsildar of Ganapavaram. He claimed that Ex.X.1 is the copy of the basic register of ration cards. Ex.X.1 shows the judgment debtor as a ration card holder. His name figured at Sl.No.102 at Door No.5. Ex.X.1 admittedly shows that the judgment debtor holds white ration card. RW.3 asserted that Ex.R.1 shows the judgment debtor as an agricultural labourer. Ex.X.1 confirms that the judgment debtor holds a ration card. Column No.6 of Ex.X.1 also discloses that the judgment debtor is a labourer. No other evidence is necessary to hold that the judgment debtor is a labourer. 13. By way of abundant caution, the judgment debtor examined RW.2. RW.2 claimed that he is a lessee of lands and that the judgment debtor worked as labourer in his lands. He refers to Ex.R.1 ration card in favour of judgment debtor. He also speaks about judgment debtor working as a tailor. He supported the claim of the judgment debtor by deposing that the avocation of the judgment debtor as a tailor more or less was merely as a past time. I am not prepared to draw any inference from the evidence of RW.2 that the second respondent has been a tailor. 14. RW.2 was extensively cross-examined relating to EP schedule premises. RW.2 pointed out that the schedule property is owned by the judgment debtor and that the judgment debtor once informed him that he mortgaged the same to one Nandyala Parvathamma. It indeed is an irrelevant whether the judgment debtor is able body person and is an able to make an earning so long as it is established that the judgment debtor is an agriculturist, or a labourer or an agricultural labourer and that the schedule property is owned and occupied by him. So far as the claim of the judgment debtor is concerned, the evidence of RWs.1 and 2, coupled with the evidence of RWs.1 and 3 and Exs.R.1 and X.1 established that the judgment debtor is a labourer or an agricultural labourer. So far as ownership and occupation of the premises by the judgment debtor is concerned, the decree holder herself point out that the judgment debtor is the owner of the schedule premises and has been in occupation of the same. The judgment debtor consequently established the conditions contemplated by Section 60 (1)(c) CPC. The property under attachment is exempt from attachment and from sale. 15. The execution Court unfortunately did not exercise the jurisdiction properly by evaluating the evidence. It jumped to the conclusion that the judgment debtor admitted that he is a tailor and that the judgment debtor consequently is not entitled to the benefits of Section 60 (1)(c) CPC. This is neither patently nor evident on the record. It would appear that the execution Court did not exercise the jurisdiction conferred upon it by evaluating the case properly. Patently, the judgment debtor is an agricultural labourer and property under attachment and coming up for sale is the property under the occupation of the judgment debtor. The decree holder is neither entitled to attach the same nor is he entitled to sell it. The impugned order suffers from patent irregularity and is liable to be set aside where the property under attachment is hit by Section 60 (1)(c) CPC. I consequently consider that the trial Court is not justified in rejecting the contention of the judgment debtor and proceeding with the sale of the schedule property. The sale is liable to be set aside. 16. The civil revision petition is accordingly allowed. The sale of the property by the execution Court is not maintainable and is accordingly set aside. There shall be no order as to costs. _______________ K.G. SHANKAR, J Date: 21.01.2011 Isn Note: LR copy marked. (B/o.) Isn