OPC No. 639 of 2010 · Kerala High Court

O.P.(C) NO.639 OF 2010 :: 3 ::indicate that though he was going for the work of rubber tapping, after he suffered from 'Chickun Guinea', he stopped that work. Atpresent, he is engaged in the cleaning work of the parish hall of thechurch. No evidence was adduced by the decree holder and nodocuments were produced by him to show that the judgment debtorhas any other property or any other income.6. The court below accepted the case put forward by thejudgment debtor that he is a labourer and he has income only fromthe coolie work. The property sought to be sold is having a smallextent and the entire property is occupied by the house andappurtenances. The court below believed the evidence of thejudgment debtor and held that the property owned and possessed byhim is not liable to be attached and sold in court auction. It was heldthat the judgment debtor is entitled to the benefit of clause (c) of theproviso to Section 60 of the Code of Civil Procedure.7.

The learned counsel for the petitioner submitted that thereis no pleading in the objection to Section 66 notice that the petitioneris an agriculturist or a labourer or a domestic servant. It is true thatin the objections to Rule 66 notice, the judgment debtor did not say O.P.(C) NO.639 OF 2010 :: 4 ::that he is either an agriculturist or a labourer or a domestic servant. But he stated in the objections that the house in which he is residingwith his family was donated by the church and that he is entitled tothe benefit of Section 60(c) of the Code of Civil Procedure. It wascontended in the objections that the property is not liable to beattached and sold in execution. However, the objections to thenotice under Rule 37 of Order XXI of the Code of Civil Procedurewould indicate that the judgment debtor is a labourer. The evidenceof the judgment debtor would show that after he suffered from'Chickun Guinea', he is engaged in the cleaning work of the parishhall of the church.

The judgment debtor is aged more than 72 years.8. The evidence on record would clearly indicate that thepetitioner has satisfied all the requirements of clause (c) of theproviso to Section 60 of the Code of Civil Procedure. The courtbelow rightly held that the petitioner is entitled to the said benefit andthat his property, having an extent of 5 cents of land and the housethereon, is not liable to be attached and sold. The order passed bythe court below does not suffer from any infirmity. No grounds aremade out for interference under Article 227 of the Constitution of India. O.P.(C) NO.639 OF 2010 :: 5 ::For the aforesaid reasons, the Original Petition (Civil) isdismissed. (K.T.SANKARAN)Judgeahz/