VISHVANATH VITHALSA ZAD Vs. BALARAM ANANDRAM PAWAR

JUDGEMENT

(1.) THIS is an appeal from the First Class Subordinate Judge of Poona raising a question in execution in a case falling within the Dekkhan Agriculturists Relief Act, 1879.

(2.) THE material facts are that in 1931 there was a mortgage decree against the judgment-debtor, the present appellant, for Rs. 12,000, and a decree was passed on the basis that he was not an agriculturist, and in 1932 his property was sold for appreciably less than the amount due. In 1934 the creditor obtained a personal decree against the judgment-debtor for the balance, and on January 19, 1935, the present darkhast was issued asking for attachment and sale of the immoveable property of the judgment-debtor, and on February 9, 1935, an order was made for the attachment of the immoveable property. THE judgment-debtor on that occasion maintained that he was an agriculturist, having become so since the date of the decree; but it was held against him that both on the date of the decree, May 29, 1934, and on the date of the order of attachment, February 9, 1935, the judgment-debtor was not an agriculturist. Section 22 of the Dekkhan Agriculturists' Relief Act provides that immovable property belonging to an agriculturist shall not be attached or sold in execution of any decree, unless the property has been specifically mortgaged. In this case the property sought to be sold had not been specifically mortgaged, and the judgment-debtor now contends that an order for sale of the property cannot be made, because since the date of attachment he has become an agriculturist. A literal reading of Section 22 prohibits property belonging to an agriculturist from being either attached or sold, and suggests that the question of status arises both when the property is attached, and when it is sold. I think that the learned Subordinate Judge was disposed to adopt that construction of the Act, but he held, relying on a decision of this Court in Shamrao v. Malkarjun (1931) 33 Bom. L.R. 797, that the judgment-debtor, having raised the question as to his status at the time when the order for attachment was made, was bound by the finding against him throughout the execution proceedings, and that the matter was really res judicata.

(3.) THE appeal, therefore, must be allowed. THE learned Judge directed the sale of the appellant's property on March 8, 1940. That order will be set aside, if it is proved that the judgment-debtor is an agriculturist, and the matter must go back to the lower Court to consider whether at the time when the Court is asked to make an order for. sale the judgment-debtor is an agriculturist.