The right to exemption under S.60(1)(e) is personal and ceases to exist after the death of the entitled person. Legal heirs are ineligible to claim the exemption. The court has a duty to sell only such property or portion necessary to satisfy the decree, as mandated by Order 21 Rule 64.

P.A. Mohammed, J.

This is an appeal arising from execution proceeding in O.S. No. 252/82 on the file of the Sub Court, Kottarakkara, The appellants are the petitioners-judgment-debtors in Execution E.A. 12/89. The respondent is the assignee-decree-holder. The original decree-holder is the Bank of Thanjavoor Limited which was later amalgamated with Indian Bank with effect from 20.2.1990. The decree was assigned to the Indian Bank thereafter.

2. In O.S. No. 242/82 a decree has been passed for realisation of Rs. 75,774 together with interest. The defendants 1 to 5 are jointly and severally liable for the aforesaid amount. In execution proceeding the decree-holder filed an application for attachment of 8 items of immovable properties belonging to the original judgment-debtors 1 to 5. That application was allowed. The 4th judgment-debtor in the meanwhile died and his legal heirs were impleaded as judgment-debtors 6 to 11.

3. The contention raised by the 5th judgment-debtors was that he was an 'agriculturist'. The same plea is advanced by his legal heirs. It is pointed out that item 1 of the property is liable to be exempted under S.60(1)(e) of the Code of Civil Procedure. Under the said provision the following properties shall not be liable to attachment or sale in execution of a decree.

"Houses and other buildings (with the materials and the sites thereof and the 1 and immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him."

The right under the above provision is a personal right available to an agriculturist or a labourer or domestic servant. Itis neither heritable nor alienable. It can been forced only during the life-time of the person who is entitled to claim the right and after the death of the person concerned, the said right ceased to exist. Thus on the death of the 5th judgment-debtor the claim on the basis of the above provision has been effaced. The judgment-debtors 6 to 11 are also disabled to claim the said right as they are not agriculturist or labourer or domestic servant. That being the positi on, I cannot agree with the contentions urged by the appellants in this case.

4. However, the counsel for the appellants advanced a strong plan that a portion of the attached properties alone be sold in realisation of the decree amount. Their case is that item No.1 is a property having an extent of 60 cents. Apart from that there are 7 other items of properties lying under attachment. This is not worrisome argument, On the other hand it deserves countenance because in all execution proceedings the court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small the court must bring only such portion of the property the proceeds of which would be sufficient to satisfy the claim of the decree-holder. "There is a duty cast upon the court" under 0.21 Rule 64" to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature which cannot be ignored. "(See: Ambati Narasayya v. M. Subba Rao - AIR 1990 S.C. 119). In the present case, the properties are attached and they arc liable to sale. But no sale has been taken place so far. Therefore, the right available to the appellants under Order 21 Rule 64 is not foreclosed. It can be crystallized at this stage. It is for the appellants to move the executing court seeking to exercise the power in their favour under Order 21 Rule 64 as interpreted by the Supreme Court in Ambati Narasayya v., N. Subba Rao (AIR 1990 S.C.119).

The appeal is dismissed subject to the above observation.