KODANADARAMAYYA, J.

( 1 ) THIS revision petition was referred to division bench by a single judge as it raised a legal question of substantial importance. The facts are not in controversy and they may be stated as follows:- The respondent obtained a money decree against the revision petitioner on the basis of a pronote in O. S. No. 75 of 1969 on the file of the principal District Munsif, gudivada. The decree holder filed E. P. No. 100/71 and the Judgment-debtor after making certain payments filed the present application out of which the above civil revision petition arose claiming exemption of his house from attachment. The courts below held that the revision petitioner is an agriculturist and the residential house is exempted from attachment but held that he waived the objection as to the non-availability of the house from attachment within the meaning of S. 60 (1) proviso (c) of civil P. c. The said view of the courts below was canvassed by the revision petitioner.

( 2 ) THE learned single Judge referred the above revision tot he Bench in view of the Judgment of the Supreme Court in Union of India V. J. C. Funds and Finance, AIR 1976 Supreme Court 1163 which held that the provisions of S. 60 (1) (g) and (k), C. P. C relating to exemptions of stipends, gratuities and compulsory deposits under provident funds Act from attachment based on public policy, makes reconsideration of the judgment of this Court in santakumari v. Suseeladevi, AIR 1969 Andh pra 355 necessary.

( 3 ) IT is necessary to state at the outset that S. 60 C. P. C is amended by the amending Act 104 of 1976 enlarging S. 60 (1) proviso (c) exempting the 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. The new definition enlarged the applicability of the said provision to labourers and domestic servants also. Sub-sec. (1-A) was added to S. 60 C. P. C stating that"notwithstanding anything contained in any other law for the time being in force an agreement by which a person agrees to waive the benefit of any exemptions under this section shall be void". If this amendment governs the present case the petitioner is entitled to succeed as the courts below having held that the house is exempt from attachment overruling the objection on the ground that the petitioner waived his right under this S. 60 (1) proviso (c), C. P. C Now as per the new amendment the plea of waiver is no longer permissible and such agreement to waive the benefit of an exemption under this section shall be void. This reference is made before amendment and out decision governs only cases prior to the amending Act as the amendment made to section 60 was not given retrospective effect specifically as per S. 97 (2) (g) of the Amending Act stating that the provisions of S. 60 of the principal Act as amended by S. 23 of the Amending Act shall not apply to any attachment made before the commencement of the said S. 23 hence our decision governs only the case that arose prior to the Amending Act, 1976.

( 4 ) THE main contention of the respondent is that a division Bench of this Court in Santakumari v. Suseeladevi (AIR 1969 Andh pra 355) (supra) held that S. 60 (1) proviso (c ). C. P. C though exempts from the attachment the houses or other buildings of agriculturists, the said right can be waived by him as the provision contained therein is not based on public policy.

( 5 ) THE judgment of the Division Bench in Santakumari v. Suseeladevi, (supra) is a case where the house belonging to an agriculturist was sought to be sold in execution after obtaining a decree on the basis of a mortgage of that house made by the agriculturist. Hence that is a case where the agriculturist voluntarily executed a mortgage and made the house as security for the debt and the creditor decree-holder executed the decree on forcing the security. The

Click Here to Read the rest of this document