The exemption under section 60(c) of the Civil Procedure Code applies only to the sale of property belonging to an agriculturist and occupied by him. The exemption becomes operative only at the stage of sale and not at the stage of attachment. The exemption can be waived by the judgment-debtor. The occupation by an agriculturist of property in which he has no saleable interest does not entitle him to object to the sale of the property.

( 1 ) THIS appeal by the decree-holder arises out of an application filed by some of the legal representatives of a judgment-debtor under clause (c) of the proviso to sub-section (1) of section 60, Civil Procedure Code, seeking exemption from the sale of a property that was attached during the life-time of the judgment-debtor.

( 2 ) IN execution of the decree for money in Small Cause Suit No. 49 of 1957 on the file of the Subordinate Judge s Court, Guntur, the appellant proceeded to attach the property in question, a site with a thatched house and a tobacco barn standing thereon. There was no objection raised to the attachment during the life-time of the judgment-debtor. After his death, the right to the property has devolved on three sons and two daughters who survived him. Two of the sons of the deceased filed the application that has given rise to this appeal, objecting to the sale of the property, on the ground that they are in sole occupation thereof for agricultural purposes and that it belongs to them. Their application was allowed by the Subordinate Judge and that decision was confirmed by the District Judge.

( 3 ) BEFORE the learned District Judge, it was contended that the sisters of the petitioners as also one of the brothers were not agriculturists and that in any event, no exemption in respect of the sale of the shares held by them could be recognised. In dealing with this contention, the learned District Judge observed :"as pointed out by the Subordinate Judge, if only 2/5ths is liable to be exempted and 3/5the of the property is allowed to be sold in execution, the purpose of the provision under section 60, Civil Procedure Code will be defeated as the property will not be available for the use of the agriculturists. "the decree-holder preferred a second appeal to this Court which was decided by chandrasekhara Sastri, J. The learned Judge confirmed the decision of the courts below. The correctness of this decision is now challenged in this appeal before us.

( 4 ) IT may be stated at the outset that the reason assigned by the learned District judge for exempting from sale the entire property including the interest of the non-agriculturists, is manifestly unsound. It is only the property belonging to an agriculturist that is exempted from sale. It is not easy to follow how the purpose of the provision under section 60, Civil Procedure Code, is defeated if the fractional interest in the property held by non-agriculturist is sold. The question is not, as the learned District Judge has postulated it, whether the interests of the agriculturist debtors are served : rather the test should be whether the Code of civil Procedure prevents the decree-holder from levying execution by way of sale in respect of a specific category of property. The learned Judge, who decided the second appeal, upheld the decision of the Courts below, on a different ground.

( 5 ) THE view that commended itself to him is, that the deceased judgment-debtor was an agriculturist and was occupying the property for the purpose of agriculture, and, therefore, the attachment itself was illegal under clause (c) of the proviso to sub-section (1 ). The learned Judge observed:"the decree-holder is now trying to proceed against this property as an asset of the deceased judgment-debtor in the hands of his legal representatives. Further, though the respondents are entitled only to 2|5th share in the property, they are now in exclusive occupation of the same for the purpose of agriculture. "

( 6 ) WHILE recognising that the contention advanced for the appellant appeared to be plausible, the learned Judge declined to accept it on the ground that the petitioners were in sole occupation of the property for purposes of agriculture. It is clear that the decision of the learned Judge rests upon two grounds. Firstly, he considered that the relevant test is whether at the time of the attachment, the property in question belonged to an agriculturist. Seco