Plea for exemption from attachment must be raised timely; failure undermines claims of necessity.

JUDGMENT

(Dated this the 16^th day of July, 2025)

This petition is filed by the petitioner/Judgment debtor by challenging order passed by the Munsiff Court, Punalur, in E.A.No.57/2018 in E.P. No.10/2017 alleging out of O.S.No.386/2014.

2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

3. The case of the petitioner is that the respondent obtained the decree and filed EP for execution of the decree for realisation of Rs.3,75,668/-. The execution court issued a warrant, wherein, the petitioner appeared and filed an application under Section 60 (1)(c) r/w Section 151 of Code of Civil Procedure, 1908 (herein after referred to as CPC) stating that the property is the only accommodation available to the petitioner and that they are staying in the house. Therefore, it cannot be the subject matter for attachment as an alienation. On the application filed by the petitioner, the trial court also allowed to lead the evidence. Three witnesses have been examined and produced some documents. After hearing the arguments, the execution court dismissed the application which is under challenge.

4. The learned counsel for the petitioner submits that the property, which is attached, is the only property available to the petitioner and there is no other person to look after her. Therefore, it should be exempted from the delivery warrant as required under Section 60 (1) (C) of the CPC. Therefore, prayed for allowing the petition.

5. Per contra, the learned counsel for the respondent is contended that previously the property has been attached by the decree holder, that was 10 cents of land. Thereafter, at the request of the petitioner/judgment debtor, and with the no objection of the decree holder, 7 cents have been permitted to alienate by the petitioner for the purpose of performing the marriage of the daughter of the petitioner/judgment debtor. After selling the 7 cents, the petitioner/judgment debtor has performed the marriage of the daugher. Now, the remaining 3 cents is already under attached with the respondent/decree holder. The said objection in respect of residence house is not raised by the petitioner at the time of attachment and also at the time of lifting the attachment by the Court for 7 cents of land. Therefore, at this stage it cannot be exempted from attachment or execution of the decree. Learned counsel also relied upon the judgment of the Division Bench of this Court, reported in Kiran Bala Vs. Surinder Kumar , [1996 KHC 835] . Hence, prayed for dismissal of the petition.

6. Having heard the arguments and perused the records. The points that are arose for consideration are as follows:-

i. Whether the order under challenge call for any interference?

7. On perusal of records, it is not in dispute the respondent obtained a decree and filed an EP for realisation of recovery of Rs.3,75,668/- Subsequently, by filing the EP, the said property was already attached by the Court even prior to the filing of the EP during the pendency of the suit, in OS No.386/2014 by Munsiff Court, Punalur.

Subsequently, the same property was mentioned as scheduled property for attachment in the EP. During the pendency of the execution case, the petitioner filed an application for lifting the attachment on the ground that she has to perform marriage of her daughter and requested for lifting only 7 cents of land by keeping the 3 cents of property which consists of the residential house where she said to be resides. At the time of lifting the attachment, she has not pleaded that this house which is not liable for attachment but she wants to sell the property by showing 7 cents o