MARUTI BABAJI TOTRE Vs. MARTAND NARAYAN KULKARNI

JUDGEMENT

(1.) The appellants obtained a money decree against one Narayan Ballal in Civil Suit No. 415 of 1911 in the Second Class Subordinate Judge's Court at Khed for Rs. 685-10-0 and proportionate costs. Narayan Ballal was described as an agriculturist, and consequently as long as he was alive his immoveable property could not be attached or sold in execution of that decree, On his death the plaintiffs sought to attach the property which came to his sons as the surviving members of the joint family. Under Section 53 of the Civil Procedure Code the sons of Narayan Ballal must be considered to be his legal representatives, and under Section 50 the decree-holder is entitled to execute his decree against the legal representatives of the deceased. But it has been urged that if the sons are not agriculturists, the property is no longer protected by Section 22 of the Dekkhan Agriculturists Relief Act.

(2.) In the trial Court the Judge found that the sons of Narayan Ballal were not agriculturists, but he held that the immoveable property was not attachable in the hands of the heirs of Narayan even if it were proved in execution of a money decree that they were not agriculturists.

(3.) In appeal unfortunately the District Judge thought it was not necessary to record a finding on the question whether the sons were agriculturists, as in the first place, he could not do so without further inquiry which would necessitate a remand, and because in the second place, on the other issue he agreed with the Subordinate Judge. The point is not covered by any authority to which we have been referred, therefore the matter is one of first impression. Section 22 says:- Immoveable property belonging to an agriculturist shall not be attached or sold in execution of any decree or order passed whether before or after this Act comes into force, unless it has been specifically mortgaged for the repayment of the debt to which such decree or order relates, and the security still subsists. For the purposes of any such attachment or sale as aforesaid standing crops shall be deemed to be moveable property.