Shrikumar M.G Ganpat Judgment-Debtor v. Mt. Kashibai Decree-Holder .

1. The appellant-judgment-debtor claimed exemption from attachment of five houses under Section 60(1)(c) of the CPC. His objection was allowed with regard to the main dwelling house and a kotha but was disallowed in respect of three other houses Nos. 229, 237-A and 257 in the Murtizapur Municipal assessment list. In his appeal he claims that these houses also were occupied by him as agriculturist. The lower Court has held that the real needs of the applicant consistent with the claims of his creditors are to be looked to and that so many different houses are not required. The appellant relies on 1933 Nag. 80(1), where exemption of premises was allowed although they were larger than were necessary in order to enable the judgment-debtor to earn his livelihood as an agriculturist. In this case the buildings were held to be larger than necessary but still they were all in one compound and were occupied for agricultural purposes, the appellant having no other means of livelihood. In the present case the judgment debtor is still a student. His father held about 200 acres of land and in addition a cotton and cloth shop in the bazar (building No. 237-A). There is nothing to show how much of the land is now leased out and how much cultivated at home. In 1931 Nag. 8(2) it was held by Macnair, A.J.C (who also decided 1933 Nag. 80 that it must be shown whether the judgment-debtor occupied the attached houses in good faith for the purposes of agriculture. The learned Additional Judicial Commissioner disagreed with the definition of “agriculturist” in 1926 Mad. 350(3) and held that it would include all persons who gain a substantial portion of their livelihood, not necessarily the whole of it, by agriculture. The other principle, in 1926 Mad. 350 was however accepted, namely, that it must be shown that the property is occupied by the objector for the purposes of agriculture, i.e, to enable the owner or occupier to cultivate the land.

2. Now in the present case the various houses seem to be scattered throughout the town and not in one compound.

3. The evidence for the judgment-debtor has not been critically examined by the lower Court. I find some discrepancies in it, for instance about the shop, and I am not inclined to place implicit reliance on it. Ganpat (A.W 5) says that agricultural implements are stored in the upper story of the shop (No. 237-A), but no other witness says so. It is also admitted by this witness that the upper portion of house No. 239 is let out-There is some evidence that kadbi and grain husk are kept in house No. 257 but the Municipal register shows that this house is in ruins and I do not think that even kadbi and grain husk would be kept in a tumble down isolated house accessible to anybody. As for the payment of labourers in the shop, that would only be an intermittent business and one would expect it to be done at the dwelling house in the town where the money would naturally be kept. I am therefore very doubtful whether these houses are used for agricultural) purposes. It was for the judgment-debtor to prove the circumstances qualifying for exemption and to show his bona fides. It was not necessary for him to demonstrate that each square foot of the premises was required for his agriculture. But with regard to these three houses I seriously doubt whether they are required or occupied for agricultural purposes at all. Another point taken was that the land attached should be sold in preference to these houses. As remarked by the respondent, lands have to be sold by the Collector which is a lengthy business and there is no reason why the decree-holder should be debarred from a more speedy remedy. The appeal therefore, in my opinion, cannot succeed. It is dismissed with costs. I fix pleader's fee at Rs. 20.

4. Appeal dismissed.