T. THIRAVIA NADAR Vs. S. THIRAVIA NADAR

JUDGEMENT

(1.) THIS civil miscellaneous second appeal arises under the following circumstances. The respondent obtained a decree against the appellant in O.S. No. 118 of 1970 on the file of the Ambasamudram District Munsif's Court on foot of a promissory note. In execution the decree -holder sought to bring the judgment -debtor's house to sale. The judgment -debtor filed E. A. 952 of 1971 praying for the dismissal of the execution petition. The main basis upon which he asked for dismissal is that under proviso (c) to Section 60 (1), Civil P. C. the house belongs to an agriculturist and is occupied by him and, therefore, it is not liable to attachment or sale. The judgment -debtor's contention was that he was an agriculturist within the meaning of Section 60 (1) (c), Civil P. C. The decree -holder filed a counter in which he contended that, by virtue of the findings in O.S. No. 118 of 1970 and A. S. 35 of 1971, the judgment -debtor was barred by res judicata from contending that he is entitled as an agriculturist to the benefits of Section 60 (1) (c), Civil P. C. He further contended that the judgment -debtor was not entitled to claim the relief, inasmuch as he remained ex parte in E. P. 404 of 1971, and he had allowed attachment before judgment to be confirmed. The judgment debtor examined himself as P. W. 1 and one Daveedu Nadar as P. W. 2. He also filed a number of documents in support of his plea that he was an agriculturist. The decree -holder led no oral evidence in refutation of the judgment -debtor's plea. He merely produced a certified copy of the judgment in A. S. 35 of 1971, had it marked as Ex. B -1 and contended that the judgment -debtor was not entitled to the benefits of Section 60 (1) (c), Civil P. C. The Court of first instance dismissed the execution application of the judgment -debtor after holding that his Plea was barred by res judicata. An appeal filed by the judgment -debtor to the Subordinate Judge. Tirunelveli, was also dismissed. It is against the dismissal of the appeal the present civil miscellaneous second appeal has been filed.

(2.) I may at the very outset say that both the Courts below have been labouring under a misconception as to the meaning of the word 'agriculturist' employed in Section 60 (1) (c), Civil P. C. Evidently, they seem to have taken for granted that the concept of an agriculturist as contemplated by Section 60 (1) (c), Civil P. C. is the same as, and in no way different from, the concept of agriculturist under Madras Act IV of 1938. Under Section 3 of Madras Act IV of 1938, an agriculturist means a person, who has a saleable interest in any agricultural or horticultural land in the State of Tamil Nadu or holds an interest in such land under a land holder under the Tamil Nadu Estates Land Act 1908, as tenant, ryot or under tenure holder or holds an interest in such land recognised in the Malabar Tenancy Act, 1929 (Tamil Nadu Act XIV of 1930) or holds a lease of such land from any person specified in sub -clause (a), (b) or (c) or in a sub -lessee of such land. The proviso to this section takes out of the definition of 'agriculturist' a person who has been assessed to income -tax or profession tax on a half yearly income of more than one thousand and two hundred rupees or has been assessed to property or house tax or land holder of estate in respect of which any sum exceeding five hundred rupees is payable as peshkush or any sum exceeding one hundred rupees is payable by way of quit rent, jodi kattubadi, poruppo or other due of a like nature. On the other hand, Section 60, Civil P. C. which was framed in 1908, had a different notion of an agriculturist altogether when it used that word in Section 60 (1) (c). The connotation of the word has been authoritatively expounded by the Supreme Court in Appasaheb v. Balachandran, AIR 1961 SC 589 at p. 595. Their Lordships said -