Point of Law : Exemption provided under Section 60(1)(c) of C.P.C is not applicable to a charge decree or to a decree where there is a statutory charge, over property.

JUDGMENT :

O.P(C).No.2004/2018 is one filed under Article 227 of the Constitution of India by the judgment debtor in E.P.No.76/2016 in O.S.No.6/2016 on the file of Munsiff Court, Vaikom, challenging order dated 20.06.2018, which is produced as Ext.P11. As per Ext.P11, the learned Munsiff accepted the sale proposed by the decree holder after exempting 7 cent out of 14 cent. The decree holder is the respondent in this Original Petition.

2. Whereas the decree holder has filed O.P(C).No.1755/2019, arraying the judgment debtor as respondent, challenging Ext.P4 order dated 3.1.2018, whereby the learned Munsiff exempted 2.67 Ares of property from sale under Section 60(1)(c) of the Code of Civil Procedure, holding that the said portion is the residential house of the judgment debtor and the land appertenant thereto which was liable to be excluded from the sale since he is an Agriculturist. The judgment debtor is the respondent in this Original Petition.

3. I shall refer the parties in this Original Petition as the 'decree holder' and the 'judgment debtor' for easy reference.

4. Heard the learned counsel for both sides in detail.

5. 3 relevant questions arise for consideration herein, as under :

(i) Whether exemption provided under Section 60(1) (c) of the Code of Civil Procedure is applicable to a property, where there is a statutory charge?

(ii) Whether exemption under Section 60(1)(c) of C.P.C is available to a property covered by a charge decree?

(iii) Whether in view of Ext.P11 order in O.P(C).No.2004/2018, the judgment debtor is estopped from challenging Ext.P4 order in O.P(C).No.1755/2019 whereby the learned Munsiff granted exemption under Section 60 (1) (c) of the Code of Civil Procedure?

6. I shall refer the impugned order in O.P(C).No.1755/2019 as 'Ext.P4' and the impugned order in O.P(C).No.2004/2018 as 'Ext.P11' hereinafter for convenience.

7. While challenging Ext.P4, the learned counsel for the decree holder would submit that Ext.P4 order is erroneous and the judgment debtor is not entitled to get any exemption in this case where the decree was for getting back advance purchase money, where a statutory charge under Section 55(6)(b) of Transfer of Property Act was created. In this connection, the learned counsel had given heavy reliance on a Divison Bench ruling of this Court reported in [2019 (3) KHC 646 : 2019 (3) KLT 147], Ammini v. K.V. Vibeesh & Ors. In the said judgment, the Division Bench observed that a judgment debtor, who suffers a money decree, if creates a charge over his property, cannot claim benefit under Section 60(1)(c) of the Code of Civil Procedure. Here, as rightly argued by the learned counsel for the judgment debtor, no charge is created in the property as per the decree. However, it is not in dispute that the decree was the outcome of a claim for advance purchase money paid for the property proposed to be sold on the basis of a sale agreement entered into between the decree holder and the judgment debtor. Therefore, a statutory charge under Section 55(6)(b) of the Transfer of Property Act is there.

8. Going by the ratio in Ammini's case (supra) it is settled that when there is a charge decree over a property, during execution, the benefit of exemption under Section 60(1)(c) of C.P.C cannot be applied. Now the question is whether, a decree, where there is a statutory charge is akin to a charge decree so as to exclude the said property out of the purview of Section 60(1)(c) of C.P.C.

9. The learned counsel for the judgment debtor, though attempted to carve out exemption in between a charge decree and a property where statutory charge is created, he could not justify his contention based on convincing materials by highlighting statutory provisions. Thus, without much ado, it can be held that a charge decree is akin to a decree where there is a statutory charge over the property.

10. It is also argued by the learned counsel for the judgment debtor that since the decree holder accepted Ext.P4 order, the same has becom