The plaintiff-decree-holder is a bank, and the judgment-debtors are brothers. In the events that happened, the plaintiff had filed a suit under Order XXXVII, C. P. C. against the judgment-debtors for the recovery from them of a sum of Rs, 53,453 with costs and interest. This suit was decreed on 13th December 1963, and in April 1964 the judgment-debtors had paid Rs, 20,030 to the decree-holder.
As no further payment was made, on 13th May 1965, the decree-holder filed an execution application and eventually obtained an order for the sale by public auction of a bungalow owned by the second judgment-debtor in Karachi. Thereupon the judgment-debtors filed an application under Order XX, rule 11, C. P. C. on 12-5-1969 for staying the auction proceedings for the sale of the said bungalow and/or for payment for the decretal amount in easy instalments on the ground that they were agriculturists within the meaning of the Dekkhan Agriculturists Relief Act and the West Pakistan Relief of Indebtedness Ordinance being Ordinance No, XV of 1960, and this application has now come up for hearing before me.
2. At the outset I have to observe, that, after evidence was closed on 15th December 1959, perhaps because learned counsel for the judgment-debtors was conscious of the difficulties of his case, he had asked for a long adjournment in order to give the parties a chance to effect a settlement. I had therefore adjourned the case to 16th March 1970, with the condition that no further adjournment would be given. However, despite my order, learned counsel for the judgment-debtor did not care to attend this Court on 16th March 1970 and sent a telegram that he was otherwise engaged. I had therefore adjourned the case to 31st March 1970, with a second warning that no further adjournment would be granted on any grounds whatsoever. Neither the judgment-debtors nor their learned Advocate cared to attend the Court and, after waiting till 11 a.m., I allowed Mr. Kamal Mansur Alam to conclude his arguments.
3. As the judgment-debtors claim to be agriculturists within the meaning of the West Pakistan Relief of Indebtedness Ordinance No, XV of 1960 I may point out that they have to show that they earned their livelihood "mainly by agriculture either as land owners or as tenants of agricultural land". I may observe here that Mr. Alam reminded me that the judgment-debtors' learned Advocate had also placed reliance on the provisions of the Dekkhan Agriculturists Relief Act. But by virtue of section 14 of Ordinance XV of 1960 that Act has been repealed. In any case, the definition of Agriculturists both in Ordinance XV of 1960 and in the Dekkhan Agriculturists Relief Act is similar, therefore, I need not consider the differences, if any, between the two statutes and I shall now examine the evidence produced by the parties on the question whether the judgment-debtors, and especially the second defendant, who is the owner of the property to be sold, is an agriculturist or not.
4. I have observed that the plaintiff's suit was under the summary chapter, and apparently in August 1962, the judgment-debtors had obtained a loan from the Elphinstone Street Branch of the plaintiff. This has been proved by the evidence of Mr. Gopalani, who was the manager of that branch at the relevant time. He said that the judgment-debtors had opened a joint account with his branch and had been allowed "a loan against the mortgage of their bungalow. It was an ecquitable mortgage and they had deposited with us for this purpose the title deeds of this property. I have with me the title deed and I produce its photostat copy (Exh. 8) I also produce a photostat of the memorandum of title deeds (Exh. 9)." I shall revert to this part of the case presently. But I may point out here that Mr. Gopalani said in his evidence that the judgment- debtors had run a company known as Jam and Jam Industries Ltd. and that they had an office in the nursery above Habib-Bank which he had personally visited. On the other hand, as against this evidence, the judgment-debtors examined Mr. Syed Hamidali who claimed to be their manager.
Mr. Syed Hamidali said in evidence that the judgment-debtors were land-owners who employed more than a hundred haris for cultivating their land in Sanghar District and that he was their manager. He further stated that the second judgment-debtor "has no other occupation except the ownership of his agricultural land." However, he admitted that the father and uncle of the second judgment-debtor had owned a Ginning Factory which they had sold five or six' years before he gave evidence. He also admitted that the second judgment-debtor was starting a textile mill which had not yet commenced production. He also produced land revenue receipts and on 15th December 1969, Mr. Muhammad Ashraf had submitted that these receipts proved the claim of the judgment-debtors. The argument is utterly falacious. These receipts only prove that the judgment- debtors were big landowners. They do not prove that they, specially the second judgment-debtor, earned his livelihood mainly from agriculture. In view of Mr. Syed Hamidali's evidence that the second judgment-debtor was starting a textile mill, no doubt in conjunction with others, the burden was heavily on the judgment-debtors to prove that their main income was from agriculture. Here I have to observe that, whilst Mr. Syed Hamidali said that the second judgment-debtor did not own the Jam Ginning Factory, no independent evidence was produced in support of this plea. Further, he admitted that a letter on the letter head of Jam and Jam Industries had been signed by the second judgment-debtor. Mr. Gopalani's evidence that Jam and Jam Industries was a company incorporated under the Companies Act stands unrebutted, therefore the judgment-debtors had to explain what had happened to Jam and Jam Industries Ltd. In the first place, Mr. Syed Hamidali had avoided referring to the second judgment-debtor's ownership of this company, and this hardly improves his veracity. Secondly, although he said that the judgment-debtors had sold off their interest in this company, no evidence whatsoever has been produced by the judgment-debtors in support of this plea. If this plea were true the judgment-debtors could easily have produced the relevant income-tax assessm ent orders both of the company and of their own income to show that, at the relevant date, they had no connection with business. They have not produced such evidence and have not cared to examine themselves in this Court, therefore they have failed to prove that they were agriculturists.
5. However, even on the footing that they are agriculturists their application has to fail. Both under section 7 of the West Pakistan Relief of Indebtedness Ordinance and under section 22 of the Dekkhan Agriculturists Act, the protection available to agriculturists under these statutes is not available for property which is specifically charged with the debt sought to be recovered. In the instant case, Mr. Gopalani's evidence and the memorandum for the deposit of title deeds dated the 6th August 1962 (Exh. 9) signed by the judgment-debtors proves that the property to be sold had been equitably mortgaged for the very loan for the recovery of which the decree-holder had filed the suit and obtained the decree under execution, therefore neither the West Pakistan Relief of Indebtedness Ordinance nor the Dekkhan Agriculturists Act helps the case of the judgment- debtors.
6. I may observe here that when Mr. Gopalani had produced evidence about the equitable mortgage Mr. Ashraf had taken an objection on the ground that the mortgage was not registered or stamped. The argument is misconceived because the mortgage was made in Karachi for property situated in Karachi therefore the parties were competent to create an equitable mortgage. No question of stamp or registration arises in such a mortgage, therefore learned counsel's argument is totally devoid of merit.
7. Finally, Mr. Alam, who has argued this case with fairness in Mr. Ashraf's absence, pointed out that on a previous date Mr. Ashraf had said that he would rely on the provisions of section 60 of the Civil Procedure Code. Under subsection (c) of this section "houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him," are exempt from attachment and sale in execution proceedings, therefore the question is whether the bungalow to be sold can be said to be a house within the meaning of subsection (c) of section 60. Mr. Alam submitted that the subsection had reference to a house used by an agriculturist for the purpose of his agriculture.
He therefore submitted that the section referred to a person who titled his own land and not a great landlord who had his land cultivated through managers and haris. Secondly, he submitted that this subsection was applicable only to a house or building used for the purposes of agriculture by the judgment-debtor seeking exemption under this section. In support of this submission learned counsel referred me to a judgment of this Court reported in Asghar Hamid v. Naseem Akhtar . Learned counsel's submission is fully supported by this judgment and the judgments of the Lahore High Court in Santram v. Buta Khan and other judgments referred to in the judgment cited.
Turning now to the facts of the instant case, Mr. Syed Hamidali's evidence has proved that he is the manager of the judgment-debtor. His evidence has also proved that the land owned by the judgment-debtors is in Sanghar District therefore, as the house which has to be sold, is situated in Karachi, it cannot possibly be said that it is being used by an agriculturist for the purpose of his agriculture. I therefore accept Mr. Alam's submission that the bungalow to be sold is not exempted from execution proceedings under section 60, C. P. C.
8. In the result, the application of the judgment-debtors is without merit and is dismissed with costs. For the reasons given here in this order was pronounced by me on 31st March 1970, after hearing Mr. Alam's arguments. PLD 1956 Lah. 211 AIR 1938 Lah. 72 1 2 1 2