In this Civil Revision Petition, the judgment debtor challenges the order passed by the executing court rejecting his application for exemption from attachment and sale of his immovable property under clause (c) of the proviso to sub section (1) of Section 60 of the Code of Civil Procedure.

2. A money decree was passed against the petitioner herein on 12-4-1991. Immovable property having an extent of 21 cents was attached before judgment on 26-10-1990. Execution Petition was filed in the year 1991. In the Appeal filed by the revision petitioner against the decree, the High Court granted stay of execution on condition of furnishing security for the decree amount. The revision petitioner offered the property in question (which was attached before judgment) as security. In the application filed by the judgment debtor to receive security, he stated that he was eking out his livelihood from the earnings as a driver.

3. In the counter dated 20-12-1001 filed by the judgment debtor in the Execution Petition, he stated that the land value of the property sought to be sold was Rs.1,05,000/- and that the market value of the property with improvements would be Rs.1,30,000/-.

Decree was for a sum of Rs.33,504/- and the amount claimed in the E.P. was Rs.45,359/-.

4. After dismissal of the Appeal, the Execution Petition was proceeded with. In 2003, the judgment debtor filed an application in the executing court claiming the benefit under clause (c) of the proviso to Section 60 (1) of the Code of Civil Procedure. He contended that he is an agriculturist eking out his livelihood by cultivating the property. He contended that he is residing with family in the house situated in the property sought to be sold. The decree holder denied this case of the judgment debtor and contended that he is not an agriculturist and that he is not residing in the house in the property. There is no house in the property sought to be sold. The decree holder also raised a contention that the application is barred by res judicata since at the earlier stages of the execution the judgment debtor did not raise any contention as is now raised by him. The property was ordered to be sold on 24-6-2003. It was contended that the judgment debtor did not raise any objection to the attachment at any time before the order for sale was passed and therefore he is barred from raising such a contention. The judgment debtor filed a rejoinder statement and contended that though he was a driver earlier, he could not continue that job after undergoing a surgical operation. Now, he is not a driver, but an agriculturist.

5. Heard Sri. G. Unnikrishnan, learned counsel for the petitioner and Sri. Parthasarathy, learned counsel for the respondent.

6. Sub Section (1) of Section 60 of the Code of Civil Procedure provides that the property mentioned therein is liable to attachment and sale in execution of a decree. The proviso to sub section (1) states that the `particulars' mentioned therein shall not be liable to such attachment or sale. Clause (3) of the proviso is the following:

"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."

Explanation V to the proviso reads as follows:

"For the purpose of this proviso, the expression "agriculturist" means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner or agricultural labourer." Explanation VI states when such an agriculturist "shall be deemed to cultivate land personally".

7. On combined reading of clause (c) of the proviso to Section 60(1) and Explanation V thereto, I am of the view that in order to claim exemption under clause (c), the judgment debtor must prove the necessary ingredients thereof. He has to prove that he is an agriculturist. There must be evid