D RUBINE Vs. BALWANTRAI RAMNARAYAN TRIVIDI

JUDGEMENT

(1.) THE plaintiff got a decree from the Bombay High Court against the defendant, who is described in the decree as a merchant and commission agent doing business at Ahmedabad and Bombay. THE defendant did not object to this description. He did not plead that he was m agriculturist, in which case this Court would have had no jurisdiction, and allowed the decree to be passed against him. When the plaintiff sought to arrest him in execution of the decree, then for the first time he claimed exemption as an agriculturist from personal arrest. He was examined, with his two witnesses, and on their evidence the Judge came to the conclusion that the defendant was an agriculturist. THE Judge said "THE defendant and his two witnesses Manilal and Venkatram state that the defendant's only business was agriculture. He doss not follow any other business. I, therefore, hold that the defendant is an agriculturist." That is not sufficient. THE defendant must prove that he earns his livelihood wholly or principally by agriculture or that he ordinarily engages personally in agricultural labour. At the mo3t he seems to have leased 150 acres of land, some of which hi let out again to tenants and some he tilled by the aid of servants. One of the witnesses said that he saw the defendant supervise the cultivation of his lands. That would not be personally engaging in agricultural labour. THE defendant made no attempt to show that he derived any income from the lease he had taken. In fact lie said he had not been able to pay rent to the lessor, so that not having brought himself within the description of "agriculturist" within the Act, he is not entitled to the exemption from personal arrest. Still the best course for the plaintiff to adopt was to attach the defendant's property, rather than arrest his person. THE appeal must be allowed with costs and the darkhast must continue. Costs in the darkhast will be co3ts in the Court below.