RAMLAL HARIRAM Vs. RATANLAL BALCHAND

JUDGEMENT

(1.) The point arising in this appeal is one which, so far as I know, has not come before the Courts before. The facts are that the plaintiffs obtained a decree on a mortgage against the defendants in the Court of the District Judge at Akola in Berars, The defendants pleaded that they were agriculturists, and prayed for instalments, but the Court held that the Dekkhan Agriculturists Relief Act not having been made applicable to Berars, the defendants could not avail themselves of its provisions, and they could not claim accounts or instalments. The bulk of the mortgaged property is situated in the Khandesh District. The decree was transferred for execution to the First Class Subordinate Judge of Jalgaon. The defendants asked for instalments, but the Judge held that instalments could not now be allowed as they were claimed in the suit and were refused, and, therefore, it was not necessary to go into evidence about their status as agriculturists. The defendants make this appeal, and the point is, whether, when a decree has been passed by a Court where the Dekkhan Agriculturists Relief Act does not apply, it is open to the executing Court where the Dekkhan Agriculturists Relief Act does apply to grant instalments to the defendants assuming of course that they are agriculturists. The learned counsel for the appellant has contended that the Judge is wrong in holding that instalments were refused, the ground on which the Akola Court proceeded being that the Dekkhan Agriculturists Relief Act was not applicable and so the question of instalments could not be considered. The defendants claim instalments under Section 15B of the Dekkhan Agriculturists Relief Act, which says:-- The Court may in the discretion, in passing a decree for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (z), or in the course of any proceedings under a decree for redemption, foreclosure or sale passed in any such suit, whether before or after this Act comes into force, direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, etc. etc.

(2.) Now in order that Section 16 B may apply, the suit in which the decree is passed or the execution proceedings are taken must be a suit of the description mentioned in Clause (y) or Clause (z). The present suit was of the same nature as suits falling under Clause (y), but it was not a suit under Section 3 of the Dekkhan Agriculturists Relief Act. Chapter II of the Dekkhan Agriculturists Relief Act applies to suits hereinafter described when they are heard by Subordinate Judges of the First or Second Class, and do not exceed a certain value. That is Section 3, Clause (6). The present suit is not a suit of that description It was not heard by a Subordinate Judge under the Dekkhan Agriculturists Relief Act, and it was held in Devu V/s. Revappa that, considering the nature of the Act, the description of suit in Section 3 is not confined to the relief claimed in the suit, but also includes the status of the parties, and hence it was held that the Court cannot, under the provisions of Section 15B of the Dekkhan Agriculturists Relief Act, 1879, grant instalments under a decree to a person who at the time the decree was passed was not, but has since become, an agriculturist. There can be no doubt that at the time the suit was determined the defendant was not an agriculturist; within the meaning of the Dekkhan Agriculturists Relief Act, which does not apply in Berara. There is another case in the same volume, which is apposite to the present case, i.e., Manlji V/s. Goverdkandas , in which a decree was passed on the Original Side of the High Court against defendant. In execution proceedings the defendant made an application under Section 20 of the Dekkhan Agriculturists Relief Act for instalments contending that he was an agriculturist. It was held (1) that the point whether the defendant was or was not an agriculturist was involved in the suit as in virtue of Section 11 and Section 3, Clause (w), of the Dekkhan Agriculturists Relief Act the High Court would not have jurisdiction to entertain the suit if the defendant was an agriculturist, and it must, therefore, be taken to have been decided that the defendant was not an agriculturist at the date of the decree, and (2) that as the defendant was not an agriculturist at the date of the decree he could not in execution proceedings raise the question that he was an agriculturist at the date of the decree. Applying this principle, it is clear that as defendants were not agriculturists within the meaning of the Act at the date of the passing of the decree, they cannot now in execution proceedings raise this question. The learned counsel for the appellants has relied on three cases, Maneklal v. Mahipatram Rudrappa V/s. Chanbasappa (1923) 26 Bom. L.R. 153 and Manoherji v. Thakordas, s.c. 8 Bom. L.R. 963. In Manehlal V/s. Mahipatram, which is a full bench case, it was held that under Section 21 of the Dekkhan Agriculturists Relief Act, 1879, the material date for the determination of the status of an alleged agriculturist is the date of the attempted arrest. But by reason of the definition of the term agriculturist in Section 2(2) of the Act, that determination may also import the determination of his status at the date when the liability arose. A person, who is sued as a non-agriculturist and who fails to appear and urge his status at the hearing of the suit and suffers a money-decree to be passed against him ex parte, is not precluded from urging in execution proceedings that he is an agriculturist at the date of the arrest or imprisonment; and for the purposes of that plea, he is not debarred from urging, if necessary, that he was an agriculturist at the data of the decree. That case was a case under Section 21. This case does not overrule Devu v Revappa, as is shown by the remarks of Patkar J. at p. 1120. The next case relied on, Budrappa V/s. Chanbasappa, holds that where a decree is passed ex parte the defendant can in execution proceedings show that he was to Agriculturist at the date of the decree and claim instalments under Section 15B. The material date of the determination of the status of the alleged agriculturist under Section 15B is the date of the decree, and that principle has been extended in the Case of Narayan V/s. Dhondo (1925) 28 Bom. L.R. 305, where it was held that the defendant can in execution proceedings show that he was an agriculturist at the dale of the decree in spite of the fact that he had not claimed the privilege in previous execution proceedings arising out of the Same decree. The material date for the determination of the status of the alleged agriculturist in all these three cases, which were decided under Section 15B was, therefore, held to be the date of the decree. This view proceeded upon the particular words of Section 15B Which involved the result that the alleged agriculturist had to prove that he was an agriculturist at the date of the decree. But it has already been pointed out that at the date of the decree of the Akola Court the defendant was not an agriculturist within the meaning of the Dekkhan Agriculturists Relief Act, It follows, therefore, on the decided cases that he cannot raise that question now. The learned counsel for the appellant has relied on the case in Mancherji V/s. Thakordas. In that case, in execution of a decree for sale of mortgaged property, a portion of the property was sold, and the rest was ordered to be sold by the Collector to whom the decree was transferred for execution. In the meanwhile the Dekkhan Agriculturists Relief Act having been made applicable to the District, the mortgagor applied to the Court for payment by instalments under Section 15B. The application was refused by the Court on the ground that the decree having been transferred to the Collector, it had no power to grant instalments. It was held oh appeal by the mortgagor, reversing the order of the lower Court, that payment by instalments could be decreed. The application for payment by instalments having been made within one month from the time the Dekkhan Agriculturists Relief Act was made applicable, no question of limitation arose. Now it is true that in that case at the time the decree was passed the Dekkhan Agriculturists Relief Act was not applicable to the Surat District, and, therefore, it might be contended that the defendant was not an agriculturist within the meaning of the Act. But nowhere in the judgment do I find any reference to this point, the case having been decided on other considerations, and hence although a very similar point to the present arose in that case, it does not seem to have received the attention of the learned Judges deciding that case, and in these circumstances I think I am bound by the view expressed in the cases already quoted, Devu V/s. Revappa, etc. I am of opinion that the suit in which the decree was passed was not a suit under the Dekkhan Agriculturists Relief Act, nor was the defendant an agriculturist as defined in that Act, and therefore Section 1513 will have no application. I may further refer to Sawantrava V/s. Giriappa , as supporting my view.

(3.) I am, therefore, of opinion that the view of the lower Court is correct, and the appeal should be dismissed with costs including costs in the lower Court. In Civil Application No. 418 of 1930, the rule is discharged with costs. Nanavati, J.