LAXMAN GANESH JOG Vs. RAMABAI VENKATESH JOG

JUDGEMENT

(1.) The appellants say that they are entitled in execution proceedings to prove that they are agriculturists, and that therefore the provisions of Section 20 and Section 71 of the Dekkhan Agriculturists Relief Act are applicable in their case. The decree that wag passed against them was one granting an application to file an award and passing a decree in terms of the award. No question of the status of the defendants as agriculturists or otherwise was raised either in the proceedings prior to the award or in the proceedings in Court after the filing of the award, and such a question would not have been relevant. The case of Mulji V/s. Goverdhandas A.I.R. 1923 Bom. 36, which has been relied upon by the lower Court in support of its view that the appellants, Defendants Nos. 5 and 8, cannot now plead that they are or were agriculturists, is not applicable, because it cannot be said that it has already been impliedly decided that they are not agriculturists. But the question still remains whether the provisions of Secs.20 and 71 can properly be applied to the proceedings against the appellants for enforcing the decree obtained against them. The respondent's counsel has drawn our attention to Govindrao Narhar v. Amabalal Mohanlal [1911] 35 Bom. 63, where it was decided that, in a case where a decree had been passed in terms of an award which was arrived at on arbitration out of, Court on an application to file that award, the Court had no power to make any order as to instalments under Section 15B of the Dekkhan Agriculturists Belief Act, which did not apply, inasmuch as the application to file the award was not a suit of the description mentioned in Section 3, Clause (y) of the Act. That, decision is based upon the view which had already been taken by this Court in Mohan v. Tukaram [1897] 21 Bom. 63 that an application to file an award is not a suit of the kind contemplated by the Dekkhan Agriculturists Relief Act. Secttion 15B accordingly could not apply as the decree was not obtained in a suit for redemption, foreclosure or sale of the descriptions mentioned in Section 3, Clause (y) or Clause (z), of the Dekkhan Agriculturists Relief Act. It seems to me that this decision equally applies to Section 20 of the Act, which must obviously be restricted to the case of a decree passed against an agriculturist in a suit under the Act. If, therefore, this suit to file an award is not a suit of the description mentioned in Section 3 of the Act, then it cannot be said that the decree was one of the kind referred to in Section 20. Section 71 also only applies to payments out of Court made in proceedings under the Dekkhan Agriculturists Relief Act, and if the decree was obtained in a suit which does not come under the Act, I cannot see how it can legitimately be held that any proceeding to recover an amount due under such decree is a proceeding under the Dekkhan Agriculturists Relief Act. It has in fact been held in Sind that the principle of the decision in Govindrao Narhar V/s. Ambalal Mohanlal [1911] 35 Bom. 31, equally applies in the case of Section 71, and that decision seems to me to be correct. I would, however, leave open the question of the possible application of Section 71 to a case different from the present, where there might have been fraud or some other consideration taking the case out of the ordinary category of that with which we have to deal here.

(2.) For these reasons, in my opinion, the order of the Subordinate Judge declining to go into the point whether the appellants were agriculturists is correct, and I would dismiss the appeal with costs. Madgavkar, J.

(3.) I agree.