RUDRAPPA SANVIRAPPA MENSINKAI Vs. CHANBASAPPA MALLAPPA BHUSAD

JUDGEMENT

(1.) IN this case a decree was passed ex parte against the defendants for Rs. 3000 and costs on October 22, 1921, by the Joint Subordinate Judge of Dharwar. The defendants were described in the plaint as being occupied in business. When the plaintiff applied for execution, the first defendant asked to be allowed instalments on the ground that ho was an agriculturist at the date of the decree. The Subordinate Judge said: "The defendant is not an agriculturist in the decree. I cannot grant him instalments." The learned District Judge upheld the order on the ground that the decision of this Court in Devu V/s. Revappa (1922) 24 Bom, L.R. 370 was applicable. All that that case decided was that the Court cannot under the provisions of Section 15B of the Dekkhan Agriculturists Relief Act grant instalments under a decree to a person who at the time the decree was passed was not, but has since become, an agriculturist. What the defendant sought to prove was that he was an agriculturist at the time of the decree, and unless it can be said that that question has already been decided against him, and is now res judicata, there is no reason why he should not be allowed to prove it in execution. Otherwise whenever an ex parte decree is passed and the defendant is not described as an agriculturist, he would be debarred from proving that fact thereafter, because he was not described as an agriculturist in the plaint and in the decree. IN these proceedings we see nothing from which it. can be held that the matter is res judicata. Therefore the appeal will be allowed, the decree of the lower appellate Court set. aside, and the Darkhast sent back to the First Class Subordinate Judge to try the question whether the 1 defendant was an agriculturist at the time the decree was passed. No order as to costs.