Quashed

Hamsa v. K.E.Sundaran and Another

Kerala HC18 Jul 2008CRP/433/2008

Case brief

AI extract

What is this about?

A single judge of the High Court of Kerala, in a revision petition challenging an order of attachment and sale (E.A. 68 of 2008), quashed the order due to non-consideration of the petitioner's claim for exemption for a labourer's residential property under Section 60(c) of the CPC and directed reconsideration.

What did the court decide?

The impugned order dated 7.4.2008 is quashed and the learned Munsiff is directed to reconsider E.A. 68 of 2008 and pass appropriate order.

Hamsa Vs K.E.Sundaran and Another — Execution and Attachment | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR

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FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930

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CRP.No. 433 of 2008() -----------------------------OS.22/2000 of MUNI-MAGI.COURT,PATTAMBI

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REVN. PETITIONER/PETITIONER :

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HAMSA, S/O PARAYARUKUNDIL ALAVI, RESIDING AT THIRUVEGAPURA AMSOM, KAIPURAM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU

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RESPONDENTS/RESPONDENTS :

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K.E. SUNDARN, S/O KALARICKAL VELAYUDHA PANICKER, RESIDING AT CHELAMBRA AMSOM, THIRURANGADI TALUK, MALAPPURAM.

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KUNHIPATHUMMA, D/O KALITHODI HYDRU, RESIDING AT THIRUVEGAPURA AMSOM KAIPURAM DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.M.VIJAYAKUMAR - R1

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRP.No. 433 of 2008()

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ORDER ON I.A.1207/2008 IN CRP.No. 433/2008

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DISMISSED

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18.07.2008 SD/-, M.SASIDHARAN NAMBIAR, JUDGE -TRUE COPYP.A. TO JUDGE

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pac

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M. SASIDHARAN NAMBIAR, J.

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C.R.P. NO. 433 OF 2008

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Dated this the 18^th day of July, 2008

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O R D E R

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Petitioner is the judgment debtor and first respondent the decree holder. Second respondent is the wife of the petitioner. Revision petition is filed under Section 115 of Code of Civil Procedure challenging the order passed on 7.4.2008 disposing E.A. 68 of 2008 filed in E.P. 45 of 2004. E.P. 45 of 2004 was filed for attachment and sale of the immovable property of the petitioner for realisation of the decree debt. Second respondent wife has earlier filed a claim petition which was dismissed and it was confirmed in appeal by Sub Court, Ottapalam in A.S. 36 of 2007. It is thereafter E.A. 68 of 2008 was filed by petitioner contending that the property cannot be sold.

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The learned senior counsel appearing for petitioner was heard.

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Learned senior counsel pointed out that in paragraph 3 (a) of E.A. 68 of 2008 petitioner specifically claimed that he is a coolie and the property sought to be sold is his residential house and appurtenant land which cannot be sold. It is argued that inspite of the benefit claimed under clause (c) of proviso to

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CRP 433/08

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Section 60 of Code of Civil Procedure, learned Munsiff did not consider the question while rejecting the application and therefore the order is to be quashed.

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There is force in the submission. Clause (c) of proviso to Section 60 of Code of Civil Procedure provides that houses and other buildings (with materials and sites) and land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist or a labourer or a domestic servant as occupied by him cannot be attached and sold in execution of the decree. The impugned order shows that this aspect was not considered by the learned Munsiff. If it is exempted from attachment and sale, the property cannot be sold for realisation of the decree debt. As the learned Munsiff did not consider the entitlement of the petitioner to the benefit provided under Section 60(c) of Code of Civil Procedure, the impugned order dated 7.4.2008 is quashed. Learned Munsiff is directed to reconsider E.A. 68 of 2008 and pass appropriate order in accordance with law.

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Revision petition is disposed of as above.

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M. SASIDHARAN NAMBIAR, JUDGE

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Okb/-

Hamsa v. K.E.Sundaran and Another

Case brief

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Hamsa v. K.E.Sundaran and Another

Case brief

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