(Prayer: Appeal (disposed of on 11-1-1945) against the order of the Court of the Subordinate Judge, Bapatla dated 25-10-43 and made in A.S. No. 205 of 43 preferred against the order of the Court of the District Munsif, Ongole in E.A. No. 941 of 1943 in O.S. No. 285 of 1931.)

The question is whether the appellants house which is under attachment is exempted from attachment under S. 60(1)(c) of the Code of Civil Procedure. Both the Courts below have held that it was not.

I am not prepared to go as far as to say that because an agriculturist has a shed in or near his field he cannot get exemption under S. 60(1)(c) for the house in which he ordinarily resides, unless he proves that he has tethered some cattle in the house or keeps agricultural implements there. An agriculturist, like every person, must have a house in which to live; and the fact that he has a shed in or near his field in which he may keep some implements and perhaps spend an hour or two in the middle of the day while engaged in agricultural operations, would not disenable him from retaining possession of the house in which he ordinarily resides, provided that house is not on a scale inappropriate to an agriculturist.

Unfortunately, neither side has let in any evidence with regard to the purpose for which the house in question is used. We only know that the shed near the appellants land was, until a short time before the attachment, used by them for agricultural purposes. Whether they ordinarily resided in the shed or in the house under attachment, we do not know; and we have no idea of the size of the building under attachment. As the burden lies upon the agriculturist of proving that a particular house is exempt from attachment, his house can be attached and sold unless he proves that it is not liable for attachment. It cannot be said in this case that they have proved that their house is exempt. The mere fact that the respondent in the counter did not expressly say that the appellants were not residing in that house, does not excuse the appellants from examining themselves and proving their case.

The appellants complain that they were not given an opportunity of adducing evidence; and one of the grounds of appeal in the lower appellate Court was to that effect. They do not however seem to have pressed that point in appeal. The B diary of the trial Court does not indicate that the appellants were precluded from letting in evidence; and the remark of the lower appellate Court that no oral evidence was adduced on either side does not indicate that the appellants were not allowed to adduce evidence.

Under the circumstances, the appeal is dismissed, but in view of the fact that the respondent has put his case too high and that the lower Courts have not expressly discussed the question that had to be decided, I do not think that any order as to costs is necessary in this Court.