The main legal point established in the judgment is that S.60 (1) Proviso (c) of the CPC does not apply to mortgage decrees where there is no need for attachment, and an agriculturist may make a valid mortgage of his house with his consent, waiving the protection conferred by the section.

1. These are execution appeals arising respectively from O.S. Nos. 14 and 15 of 1969 of the Subordinate Judge's Court, Ernakulam. A common question arises in these appeals and the question is whether S.60 ( ) proviso (c) of the Code of Civil Procedure would apply to mortgage decrees. S.60 (1) CPC. is in these terms:

"(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immoveable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:

(c) 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 and occupied by him."

In the cases before us two decrees were obtained by Kshema Vilasam Company, Trichur against the same judgment-debtors, Kochumariam and others on two mortgages executed by her. When in execution of the decrees the property was proclaimed for sale judgment-debtors objected stating that the property is their homestead, where they are residing and hence not liable to attachment or sale. In other words, the contention is that they are protected by S.60 (1) Proviso (c) of the C. P. C., quoted already. As against this objection, the decree-holder stated that the proviso, is question, cannot and does not apply to mortgage decrees, where the sale is not preceded by attachment, that is to say S.60 CPC. has no application to decrees, the execution of which requires attachment and sale. The learned Subordinate Judge, before whom execution is pending accepted this contention and overruled the objection.

2. The question is not free from difficulty and we were taken through a long line of decisions for and against the above view. We have examined the decisions carefully and we think that the weight of judicial opinion is in favour of the view that the proviso cannot apply to mortgage decrees where there is no need for attachment. The question seems to have come up for judicial consideration atleast from the year 1879 in Bhagwandas v. Hathibhai ((1879) 4 Bom. 25) where it was held that 'S. 266 CPC. (corresponding to the present S.60 (1) (c) does not prohibit the sale of property specifically mortgaged albeit that the property be materials of a house belonging to or occupied by an agriculturist.' In the judgment of the Bench it was observed:

"We are of opinion that the sale of the house, under these circumstances should be made, for we cannot suppose that it was the intention of S.266 of Act X of 1877 to prohibit the sale of property specifically mortgaged."

The same view was taken by the Allahabad High Court, though some judges had taken a different view in a dissenting judgment in Janaki Das v. Sandal ((1911) 9 I. C. 825). A Bench of that court held that the sale of houses belonging to an agriculturist in execution of mortgage decree was not illegal. A Full Bench of that court in Bhola Nath v. Kishori ((1912) 34 All. 25), Banerji, J., dissenting, held that:

"S. 60 CPC. did not operate to bar the sale of a house belonging to an agriculturist in execution of a decree on a mortgage of the same."

The matter again came before the Allahabad High Court in Mubarak Hussain v. Ahmad (AIR. 1924 All. 328) where Walsh and Mukerji, JJ. (Ryves, J., dissenting) held that Proviso (c) to S.60 CPC. deals with sales in execution of decrees in which a previous attachment is necessary, i. e., sales in execution of mone