Proviso of Section 60(1) not applicable to mortgage decree.

ORDER :- The second defendant in O. S. No. 18 of 1959, Sub Court, Padmanabhapuram, is the petitioner in this civil revision petition. That suit was laid against the husband of the petitioner, the petitioner and the Indian Chit Fund (P) Ltd. for the recovery of sum of Rs. 8172-62 p. with future interest on the basis of certain overdraft facilities afforded by the plaintiff bank to the husband of the petitioner to secure the repayment of which the petitioner had created a mortgage over her own properties. The mortgage was created by the petitioner on 21-9-1952. The husband of the petitioner and the Indian Chit Funds (P) Ltd. the subsequent encumbrancer, remained ex parte in the suit. Certain defences were put forth by the petitioner in the suit, but they were overruled and on 29-1-1960, a preliminary decree was passed declaring the amount due under the mortgage as Rs. 8172-62 p. and directing the husband of the petitioner to pay that amount as well as costs of Rs. 817-50 p. on or before 29-6-1960, failing which the plaintiff bank was directed to apply to the Court for a final decree for the safe of the mortgaged property. It is common ground that the amount was not so paid into Court by the husband of the petitioner within the time granted and that the plaintiff bank obtained a final decree on 31-1-1962 for the sale of the mortgaged property belonging to the petitioner. Subsequently, the petitioner filed I. A. 111 of 1974 in O. S.18 of 1959, under Section 19 of Tamil Nadu Act IV of 1938, for scaling down the decree on the ground that she is an agriculturist entitled to the benefits of that Act. That application was opposed by the decree holder on the ground that the petitioner is not an agriculturist entitled to the benefits of Tamil Nadu Act IV of 1938, and, therefore, no case for amending the decree under Section 19 was made out. The objections raised by the decree holder in that regard were overruled and the preliminary as well as the final decrees were amended accordingly. Thereafter, the decree holder took steps to sell the mortgaged property in accordance with the final decree to realise the amounts due thereunder. At that stage, the petitioner filed E. A. 211 of 1980 before the Sub Court Padmanabhapuram, praying that the Court should pass an order to the effect that the house property brought to sale was not liable to be sold. In the affidavit filed in support of that application, the petitioner stated that the property brought to sale comprised of a house and a house site appurtenant thereto and necessary for agricultural purposes and hence not liable to be attached under Clause (c) to the proviso to Section 60 (1), Civil Procedure Code. That application was opposed by the decree holder on the ground that the petitioner had no agricultural land at all and had never engaged herself in agriculture or horticulture and that neither the house nor the house site or other appurtenant land would be exempt from sale under Clause (c) to the proviso to Section 60 (1), Civil Procedure Code. A further objection was also raised by the decree holder to the effect that the petitioner is precluded from raising this plea at this stage as such a plea had not been raised in the course of the prior execution proceedings. Consequent to the transfer of the proceedings from the Sub Court Padmanabhapuram to the District Munsif court, Padmanabhapuram, E. A. 211 of 1980 was renumbered as E. A. 71 of 1982 and dealt with by the District Munsif, Padmanabhapuram.

2. Before the Court below, on behalf of the petitioner, P. W. 1 was examined and Exs. B 2 to B 4 were marked, while on behalf of the decree holder. R. W. 1 alone was examined. On a consideration of the oral as well as the documentary evidence, the learned District Judge found that the petitioner had not established that she is tilling the soil for her livelihood and that her main source of income was not agriculture and she was not depending for her maintenance on telling the soil. It