HANMANTRAO ANNARAO Vs. DHRUVARAJ PANDURANGRAO

JUDGEMENT

(1.) These appeals arise in execution proceedings and raise a short question as to the denotation of the word "agriculturist" used in Clauses (b) and (c) of the proviso to Section 60 (1) of the Civil P. C., 1908. The decree under execution was passed in Civil Suit No. 685 of 1936 and the darkhasts giving rise to these appeals had been filed by the decree- holder to recover the amount of costs by attachment and sale of the house of the judgment- debtor. This claim was resisted by the judgment-debtor on the ground that the house sought to be attached was exempt from attachment under Clause (c) of the proviso to Section 60(1) of the Civil P. C.. After raising this plea in the written statement the judgment- debtor took no further steps to substantiate his plea by leading any evidence. In fact, on the next date of hearing he remained absent. Thereupon the learned Judge proceeded to make an order directing the attachment and sale of the house as prayed for by the decree-holder. When a warrant for sale was issued in due course in pursuance of this order, the judgment- debtor appeared and renewed his contention that the house was exempt from attachment and sale. On this occasion evidence was led by the judgment-debtor in support of his plea. The learned Judge was satisfied that the house did belong to an agriculturist as provided by Section 60 of the Code and was as such exempt from attachment and sale. He was, however, inclined to take the view that the judgment-debtor was precluded from raising this plea at this late stage. In other words his view was that having regard to the earlier order for attachment and sale of this house, the plea now raised by the judgment-debtor was barred by res judicata. On that view he directed that further proceedings to sell the house should follow. Against this order the judgment-debtor went in appeal. The appellate Court held that the plea raised by him cannot properly be regarded as barred by res judicata. On the merits the finding of the appellate Judge was that the judgment-debtor was an agriculturist and the house sought to be attached and sold was exempt from attachment under Section 60 of the Code. That being his view, he allowed the appeals and dismissed the darkhasts with costs. It is against these orders that the decree-holder has filed the two second appeals.

(2.) For the appellant Mr. Padhye has contended that the lower appellate Court was wrong in holding that the judgment-debtor's plea was not barred by res judicata. We are unable to accept this contention. It is true that the general principle of res judicata applies to orders passed in execution proceedings; but it is well settled that the doctrine of constructive res judicata as enunciated in Explanation IV to Section 11 should be applied to execution proceedings with great caution. In the present case we are unable to hold that the learned appellate Judge was wrong in taking the view that the plea raised by the judgment-debtor was not barred by constructive res judicata.

(3.) Mr. Padhye has further contended that the finding of the lower appellate Court that the judgment-debtor is an agriculturist is erroneous in law since in making the said finding the lower appellate Court has failed to appreciate properly the meaning of the word "agriculturist" as used in Section 60 of the Code. The lower appellate Court has found that the judgment- debtor's income from agricultural sources exceeds his income from non-agricultural sources and has held that a person whose agricultural income exceeds his non-agricultural income must be deemed to be an agriculturist within the meaning of Section 60 of the Code. Mr. Padhye contends that this view is wrong in law. I think Mr. Padhye's contention is well- founded and must be accepted.