S.60(1) Proviso(c) - S.60(1) does not apply to mortgage decrees - House belonging to agriculturist is not exempt u/S.60 (1) proviso (c) in execution of decree based on mortgage of that house

Citation

AIR 1945 LAHORE 123

FULL BENCH

LAHORE HIGH COURT

HARRIES , C.J. and ABDUR RAHMAN , J. and

MAHAJAN , J. and TEJA SINGH , J. and BHANDARI , J.

Execution Second Appeal No. 218 of 1943, Decided on; reference made by Abdur Rahman J.,

D/-20-1-1944. D/- 2 - 1 - 1945

Allah Bakhsh, Judgment-debtor-Appellant v. L. Chet Ram, Decree-holder and Anr. Judgment-

debtor-Respondents.

Civil P.C. (5 of 1908), S.60(1) Proviso(c) - S.60(1) does not apply to mortgage decrees - House

belonging to agriculturist is not exempt u/S.60 (1) proviso (c) in execution of decree based on

mortgage of that house - Maxim communis error facit jus applied.

Where a decision of the Courts originally wrong or an erroneous conception of the law especially of

real or immovable property, has been followed for a length of time and as such has become the basis

upon which rights have been regulated and arrangements as to property made, the maxim communis

error facit jus should be applied and the view of law should not be upset :

(1873) 7 HL 158; (1878) 3 AC 765 and ('24) 11 AIR 1924 Lah 538 (FB), Rel. on.

 (P 124 C 2) 

As the Lahore High Court and the other Courts in India for the last 60 years or so have held that S.

60 (1) does not apply to mortgage decrees that view of law must be followed by applying the maxim

communis error facit jus. Accordingly a house or 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 not exempt from sale under S. 60 (1) proviso (c) in execution

of a decree for sale passed on the basis of a mortgage of the said property executed by the said

agriculturist : Case law reviewed.

 (P 123 C 2 , 124 C 2 , 125 C 2 , 127 1)