IMPORTANT POINTS
• What the original judgment-debtor could have perhaps claimed before death cannot be claimed by his assignee or successor in interest since the alleged right to exemption provided by Section 60(1)(c) of the Code is personal in nature
• Execution of a mortgage in relation to residential house by persons falling under the exempted category would not amount to waiver as contemplated in subsection (1A) of S.60.

T.V. Anilkumar, J.

Appellant who is the Additional Second Judgment debtor in E.P.No.174/2014 in O.S.No.37/2010 challenges the order of the Additional Sub-Court, North Paravur, dismissing E.A.No. 454/2016 filed by her under Order XXI Rule 90 of the Code of Civil Procedure, 1908 (herein after referred to as 'the Code'), for setting aside the sale conducted on 20.07.2015 which was later confirmed by the court in favour of the first respondent, the auction purchaser.

2. Appellant is the widow of one Mylan. Respondents 3 to 5 are the children of Mylan. The 2nd respondent instituted against Mylan, O.S.No.37/2010 before the Additional Sub-Court, North Paravur and obtained a decree for money on compromise on 11.02.2012. Mylan, the sole defendant in the suit later died on 28.11.2013. Alleging that a sum of Rs.95,437/-was outstanding, 2nd respondent decree holder filed E.P against the appellant and respondents 3 to 5 for realization of money by sale of their property measuring four cents of land comprised in Sy.No.417/4 of Chengamanad Village which was formerly owned by deceased Mylan. It was sold in execution of compromise decree on 20.07.2015 in court auction in favour of the 1st respondent.

3. Appellant challenged the sale dated 20.07.2015 as illegal and sought it to be set aside for various reasons by filing E.A.No. 454/2016, which the contesting respondents 1 and 2 seriously opposed. The court below after holding necessary inquiry and hearing the parties dismissed E.A.No. 454/2016 by impugned order dated 09.11.2018.

4. The contentions raised by the appellant in support of her plea for setting aside the sale are :

(1) Sale was conducted without giving notice required to be given under Order 21 Rule 66 of the Code.

(2) In fact, the liability of deceased-original defendant had been discharged even prior to his death but the same was suppressed in the execution proceedings.

(3) The property auctioned was undervalued and consequently more portion of land than what was actually necessary was sold in favour of the auction purchaser.

(4) Since the property was already settled in her name by the original defendant, it was never liable to be proceeded for sale.

(5) She is a labourer within the meaning of Section 60(1)(c) of the Code occupying the land and building for her shelter and therefore her assets are exempt from attachment and sale in execution of decree.

5. All these contentions were examined by the court below in the light of the evidence brought on record. On the side of the appellant, she was examined as PW1 and Exhibits A1 and A2 were marked. The contesting respondents 1 and 2 did not adduce any evidence.

6. The plea that the original judgment debtor had already discharged the debt before his death was held to be not established by any evidence. We also find that no convincing evidence was adduced in support of the contention that Mylan had discharged his debt by payment of money or other means. There is no ground to interfere with this finding of the court below which is based on appreciation of facts and evidence. In fact, no serious challenge was also made before us in this appeal against the above findings of the court below.

7. With respect to the contention that notices under Order XXI Rule 66 were not served on appellant and other judgment debtors, we find that the court below rightly found that there was due service of notice but the judgment debtors failed to raise any valid objection before the execution court. Since the finding is based on the records available before the court below, we do not find any ground to interfere with this finding also. The learned counsel for the appellant did not seriously challenge this finding also during the course of arguments.

8. The main two contentions raised by the appellant relate to (1) claim for exemption based on Section 60(1)(c) of the Code and (2) complaint of non-observance of mandatory requirement under Order 21 Rule 64 of the Code limiting sale to such portion of property as