Court in Vasanthakumari v. Raichal Banitta

Heard the learned counsel for the petitioner and the respondents.

3. Learned counsel for the petitioner submitted that the petitioner is a labourer and, therefore, his properties are liable to be exempted under Section 60(1)(c) of the C.P.C., inasmuch as he is occupying the house situated in that building. Learned counsel relied upon the judgment of a learned Single Judge of this OP(C) No.2763 of 2023 - 4 - Court in Vasanthakumari v. Raichal Banitta [2009 (4) KHC 951] in support of the above contention. Learned counsel also relied upon Ext.P10 pass book and Ext.P11 proceedings to drive home that the petitioner is a fisherman and thus a labourer.

4. Per contra, this application was seriously opposed by the learned counsel for the respondent/decree holder. Learned counsel pointed out that the petitioner had approached this Court on several occasions, so as to deny the 1st respondent from the fruits of the decree. It was also pointed out that the petitioner was given umpteen opportunities to furnish security in the form of Bank Guarantee, which the petitioner has not complied with, despite extension of time. When the property was sought to be proceeded against in the E.P, a claim petition was caused to be filed by the children OP(C) No.2763 of 2023 - 5 - of the petitioner, contending that the petitioner has only one-third right over the property, which claim petition was allowed. Thereafter, the 1st respondent/decree holder proceeded against the petitioner in respect of his one-third right, at which point of time, the new contention based on Section 60(1)(c) is propounded and an objection preferred. According to the learned counsel, the said objection was rightly dismissed by the learned Sub Judge, warranting no interference from this Court.

5. Having heard the learned counsel for the petitioner, this Court finds little merit in the instant Original Petition. Ext.P7 is the objection preferred by the petitioner, who is the 2nd judgment debtor, against the draft sale proclamation. The petitioner's contention therein in paragraph no.3 is that he is seeking his livelihood by catching fishes in inland OP(C) No.2763 of 2023 - 6 - waters and at times in sea, as 'labours'. This Court is of the opinion that the above pleading is far from sufficient to establish that the petitioner is a labourer, to fit into the description in Section 60(1)c) of the C.P.C. If the petitioner is catching fishes in the inland waters by himself, the same amounts to a self employment for the purpose of livelihood. At times, he claims to catch fishes from the sea as a labourer. However, no details as to in whose boat, he is employed and what are the terms of his labour etc., are pleaded. There are no pleadings even to arrive at a prima facie satisfaction that the petitioner is a labourer entitled to the benefit of Section 60(1)(c) of the C.P.C.

6. The learned Sub Judge had relied upon an agreement, to dismiss the petitioner's claim, as per which money is borrowed from the 1st OP(C) No.2763 of 2023 - 7 - respondent for the purpose of purchasing fishing equipments. The same would again militate against the petitioner's claim that he is only a labourer. This Court has also perused Exts.P10 and P11. Ext.P10 is a pass book, which would indicate that the petitioner is a fisherman and Ext.P11 is a letter issued from the Fishermen Development Welfare Co-operative Society, which only indicates that, in substitution of three persons including the petitioner, three others have been employed in a group by name 'Amrita Vahini'. The real purport of Ext.P11 is not fully clear. Suffice to observe that neither Ext.P10, nor Ext.P11 would indicate that the petitioner is a labourer, qualified for the exemption under Section 61(1)(c) of the C.P.C.

7. This Court notice that the facts in Vasanthakumari (supra) clearly distinguishable, since the petitioner therein OP(C) No.2763 of 2023 - 8 - was employed as a prawn peeling worker, thus fitting into the category of labourer, squarely. The facts at hand are different, distinct and distinguishable. In the circumstances, this Original Petition fails and the same will stand dismissed. Sd/- C.JAYACHANDRAN, JUDGE OP(C) No.2763 of 2023 - 9 - APPENDIX OF OP(C) 2763/2023 PETITIONER'S EXHIBITS: EXHIBIT-P1 EXHIBIT-P2 EXHIBIT-P3 EXHIBIT-P4 EXHIBIT-P5 EXHIBIT-P6 EXHIBIT-P7 EXHIBIT-P8 THE ABOVE SUIT WAS FILED AS AN INDIGENT PERSON. THE TRUE COPY OF THE PLAINT IN O.S.NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. THE TRUE COPY OF THE JUDGMENT AND DECREE DATED 27/3/2014 IN O.S. NO.46/2009 ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, KOCHI. THE TRUE COPY OF THE JUDGMENT DATED 31/5/2018 IN O.P(C) NO.1463/2017 ON THE FILES OF THIS HONOURABLE COURT. THE TRUE COPY OF THE ORDER DATED 3/3/2023 IN I.A.NO.1/2023 IN O.P(C) NO.1463/2017 ON THE FILES OF THIS HONOURABLE COURT. THE TRUE COPY OF THE EXECUTION PETITION DATED 31/3/2015 IN E.P. NO.29/2015 IN O.S.NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. THE TRUE COPY OF THE ORDER DATED 30/3/2021 IN E.A.NO.155/2019 IN E.P. NO.29/2015 IN O.S.NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. THE TRUE COPY OF THE OBJECTION DATED 28/10/2023 IN E.P.NO.29/2015 IN O.S. NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. THE CERTIFIED COPY OF THE ORDER DATED 2/12/2023 IN E.P.NO.29/2015 IN O.S.NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. OP(C) No.2763 of 2023 - 10 - EXHIBIT-P9 EXHIBIT-P10 EXHIBIT-P11 THE TRUE COPY OF THE SALE PROCLAMATION DATED 28/10/2023 IN E.P.NO.29/2015 IN O.S.NO.46/2009 ON THE FILES OF THE SUB COURT, KOCHI. THE TRUE COPY OF THE RELEVANT PORTION OF THE PASSBOOK ISSUED BY THE KERALA MALSYATHOZHILALI KSHEMANIDHI BOARD TO THE PETITIONER. THE TRUE COPY OF THE PROCEEDINGS DATED 21/3/2016 OF THE EDAVANAKKAD AYYAMPILLY FISHERMEN WELFARE CO- OPERATIVE SOCIETY.