The main legal point established in the judgment is the interpretation and application of the exemption under Sec. 60 (1) (c) C. P. C. to the sale of mortgaged property.

( 1 ) THIS is a revision by the decree holder against the order dated 9-1-1985 passed by the Munsiff, Karkala, in Execution Case No. 252 of 1982 dismissing the execution.

( 2 ) THE decree holder filed O. S. No. 107 of 1978 against the defendant on the foot of the mortgage and obtained a preliminary decree on 31-8-1981 and thereafter obtained a final decree. As the judgment debtor did not pay the money due under the mortgage decree, the decree holder sued out the present execution for the recovery of the mortgage amount by the sale of the mortgage property.

( 3 ) THE judgment debtor contended that he was an agriculturist within the meaning of Sec. 60 (1) C. P. C. and that the property brought to sale was his only residential house with the land appurtenant to it and that therefore it was not liable to be sold.

( 4 ) THE said contention raised by the judgment debtor appealed to the executing court and it held that as undisputedly ;he judgment debtor was an agriculturist, the only house belonging to the judgment debtor was exempt from being sold under Sec. 60 (1) (c) c. P. C. Taking this view, it dismissed the execution. Hence the revision.

( 5 ) THE learned counsel Shri Gopalakrishna Shetty submitted that there was no evidence to show that the judgment debtor was an agriculturist. But, it appears, that a concession was made before the trial court that the judgment debtor was an agriculturist. After having made such a concession before the executing court, it is now not open to the decree holder's counsel to contend that the judgment debtor had failed to show that he was an agriculturist. Even now it is not the case of the decree holder that the judgment debtor has got any other avocation in life except that of agriculture. Therefore, under these circumstances, the trial court rightly held that the judgment debtor was an agriculturist within the meaning of Sec. 60 (1) (c) C. P. C.

( 6 ) THE most important question raised by Shri Gopalakrishna Shetty is that the exemption given under Sec. 60 (1) proviso (c) C P. C. did not cover the sale of mortgaged property. He relied for That purpose on A Nabisa Beevi v the Manager, Canara Bank, Nagarcoil (A. I. R. 1984 Madras 249 ). The Madras high Court held that the word 'or' found in between the word 'attachment' and the word 'sale' in the proviso (c) to Sec. 60 (1) C. P. C. means 'and' and therefore the exemption from sale would be available only in cases where both attachment and consequent sale would take place. According to the Madras High Court, in the case of a mortgage decree, there is no question of attachment at all and therefore the exemption created by the proviso (c) to Sec. 60 (1) will not be available in the case of mortgage decree. The Madras High Court has stated in para 4 on page 251 as : -"in Section 60 (1), Civil Procedure code, the expression 'decree' is used in a general sense without being in any manner restricted. In other words, the expression used is 'a decree' meaning thereby all kinds of decrees. But, at the same time, there is an indication in Sec. 60 (1), Civil Procedure Code, regarding the nature of the decrees contemplated therein. It is seen that such types of decrees for the execution of which an attachment of the property and sale thereof is necessary, alone are contemplated and not other kinds of decrees. The proviso to Sec. 60 (1), Civil Procedure Code, enumerates the different kinds of properties not liable to such attachment and sale. The use of the expression 'such' in the proviso indicates that the attachment or sale from which the exemption is granted relates to execution of a decree. Though the expression used between the words 'attachment' and 'sale' is 'or', in the context, that expression has to be construed as 'and', as otherwise, the exemption granted under the several clauses of the proviso will have no meaning at all. The proviso operates in the nature of an exception and catalogues such properties and rights not liable to attach