The central legal point established in the judgment is that the exemption provisions under S.60(1) and the proviso of the Code of Civil Procedure do not apply to mortgage decrees, and the execution of a mortgage in relation to a residential house does not amount to waiver as contemplated in subsection (1A) of S.60.

1. Appellants herein executed a mortgage deed in favour of the respondent herein as security for the loan advanced. Subject matter of the mortgage is 5.5 cents of land together with the house, in which appellants are residing. In due course decree was obtained to enforce the mortgage. In execution residential property was brought to sale. Judgment-debtors raised objection that residential plot is exempt from sale under S.60(1)(c) of the Code of Civil Procedure (for short'the Code'). The objection was upheld by the court below. Thereafter the respondent filed EA 256/83 seeking review of the earlier order. Review application was opposed by the judgment debtors, but allowed by the court below. Hence this appeal.

2. Learned counsel for the appellants submitted that property mortgaged to the respondent and brought to sale in execution of the mortgage decree includes the house, in which appellants are residing and therefore it is exempt from sale under S.60(1)(c) of the Code.

3. S.60 deals with property liable to attachment and sale in execution of a decree. Sub-s. (1) enumerates properties which are liable to attachment and sale, in execution of a decree. Proviso enumerates properties which are exempt from attachment or sale, in sub-clauses (a) onwards. Sub-clause (c) exempts houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary far their enjoyment) belonging to an agriculturist or labourer or a domestic servant. Appellants are labourers and the property sought to be sold is their residential house and site thereof. If this is a case of attachment and sale in execution of a money decree, undoubtedly, property will have to be treated as exempt under the provisions of S.60(1)(c) of the Act. The answer of the respondent is that S.60 deals only with property liable to attachment and sale in executions of a decree and the property exempted from such process and not with sale of mortgaged property.

4. The appellant would stress on the expression used in sub-section (1) 'attachment and sale' and the expression used in the proviso 'attachment or sale' to contend for the position that while sub-s. (1) may not apply to mortgage decrees, proviso would attract even mortgage decrees. Alternatively learned counsel contended that even sub-s. (1) would apply to mortgage decrees and the expression 'attachment and sale' must be understood as 'attachment or sale'.

5. We find that two Division Benches of this Court had considered the question and answered the same against the appellants. In Kochumariam v. Kshema Vilasam Co. (1973 KLT 761) the Division Bench observed that sale under a mortgage decree, strictly speaking, is not a sale in execution of the decree; it is a sale provided in the document of mortgage and what takes place after the decree is a satisfaction of the decree and that the proviso cannot apply to mortgage decrees where there is no need for attachment. The heading of the section and sub-section uses the expression 'attachment and sale'. Under the provisions of the CPC there can be a sale without attachment. Attachment is uncalled for in the case of sale of property in execution of mortgage decree. That is because by act of parties and operation of the provisions of the Transfer of Property Act property is subject to a charge. The charge could be enforced straight away by sale. S.60(1) is in relation to attachment and sale of property. Sub-s. (1) clarifies what property could be the subject of attachment and sale, i.e., sale in pursuance of attachment by court. Proviso to sub-s. (1) can only operate in the area intended to be covered by sub-s. (1). Sub-s. (1) does not apply to cases of sale without attachment. Equally so proviso also cannot apply to cases of sale without attachment. Sub-s. (1) as well as the proviso apply only to cases of sale following attachment. Another Division Bench of this Court also considered this question in this manner in Rahima