MARTAND TRIMBAK GARDE Vs. VINAYAK KASHINATH KHASGIVALE

JUDGEMENT

(1.) The only question in this case is, whether the decree was properly sent by the lower Court to the Collector for execution. The decree in question awards to the decree-holder a sum of money to be recovered, from the defendant, and it is left to the judgment-creditor to apply for the sale of certain property secured by the decree. It is common ground that subsequent to the decree, an order for the sale of immoveable property was passed.

(2.) Mr. P. P. Khare has contended that the lower Court has no jurisdiction to allow the defendant to plead in the execution-proceedings his status as an agriculturist or more accurately his status as a person earning his livelihood principally by agriculture. He has contended that the Court had no such jurisdiction, because in the suit, and in certain proceedings" taken in Poona before the decree was transferred to Nasik for further execution, no question of the status of the defendant was raised. Mr. Khare has also contended that if such a question was to be raised at all, it ought to have been raided" in Poona and before transfer of the decree to Nasik for execution and has relied on the case of Gyanmal v. Ramchandra (1896) P.J. p. 342. But the facts in that case are wholly different from the present proceedings. In that case it is said - We think that the Subordinate Judge had no jurisdiction in the execution proceedings to reopen the question of the defendant's status as an agriculturist, which had been decided in the course of the suit, the decree in which was in process of execution.

(3.) In my opinion, the Nasik Court had no option, but to obey the rule issued by Government under Section 320, Civil. Procedure Code, and embodied in Government Notifications (Rule 17, page 58, of the. Civil Circulars), and as soon as it was brought to its notice that the decree came within that rule, the Nasik Court was bound to transfer the execution-proceedings to the Collector.