MATHURADAS TULJARAM Vs. MAHADU MARUTI KAVDE

JUDGEMENT

(1.) In this case the decree-holder made an application under Clause (2) of a 22 of the Dekkhan Agriculturists Relief Act that the Collector should take possession of the property belonging to the deceased judgment-debtor and deal with the same for the benefit of the decree-holder for a period not exceeding seven years. Before the learned Subordinate Judge it was not contended that the income of the property was less than what was necessary for the support of the defendants family, and therefore, the learned Subordinate Judge passed an order in favour of the decree-holder under Clause (2) of Section 22. On appeal, the learned Assistant Judge, relying on the decision in the case of Hirachand Motichand V/s. Hansabai (1922) I.L.R. 47 Bom. 527. S.c. Bom. L.R. 76, held that the Court had no jurisdiction under Section 22 (2) of the Dekkhan Agriculturists Relief Act to direct the Collector to take possession of the immoveable property falling into the hands of the heirs of the judgment-debtor, and following the observation of Macleod C. J. held that it was entirely contrary to all canons of construction to read into the section, "or his heirs" after the word "judgment-debtor."

(2.) It is argued on behalf of the appellants that Secs.60 and 146 of the Civil Procedure Code were not considered in that judgment, and reliance is placed on the decision in Chotiram V/s. Lalbux (1918) 15 S. L.R. 47, where it was held that the legal representatives of a judgment-debtor are under Section 50, Civil Procedure Code, read with Section 74 of Act XVII of 1879, liable to the extent of the property of the deceased come to their hands, and Section 22 does not debar the Court from the appointment of a Collector to manage the property in the hands of the legal representatives owing to the death of the judgment-debtor. It is argued on behalf of the respondents that Section 74 of the Civil Procedure Code would only apply where it is not inconsistent with the Dekkhan Agriculturists Relief Act, that Section 22 of the Dekkhan Agriculturists Belief Act is inconsistent with Section 55 of the Civil Procedure Code and Section 22 of the Dekkhan Agriculturists Belief Act is inconsistent with Section 60, Clause (1), of the Civil Procedure Code, that the remedy provided by Clause (2) of Section 22 of the Dekkhan Agriculturists Relief Act is a departure from the Civil Procedure Code, and therefore, under Section 74 of the Dekkhan Agriculturists Relief Act, Secs.50 and 146 of the Civil Procedure Code would not apply to the present case, falling under Section 22, Clause (2), of the Dekkhan Agriculturists Relief Act.

(3.) It appears that though the specific remedy provided for by Section 22, Clause (2), is not granted under the Civil Procedure Code, a similar provision is enacted in the Civil Procedure Code, Schedule III, Rule 1, Clause (6) and Rule 7, Clause (1), sub-clause (6) (i), under Secs.68 to 72 of the Civil Procedure Code. According to the decision in the case of Maruti V/s. Martand (1922) 24 Bom. L.R. 719, the immoveable property belonging to an agriculturist is, by virtue of the provisions of Section 22 of the Dekkhan Agriculturists Belief Act, immune from attachment and sale in execution of a money decree against him, but the immunity ceases as soon as the property passes on his death into the hands of his legal representatives who are not themselves agriculturists and the immunity attaches to the estate in the hands of his legal representatives if they are agriculturists. Reliance is placed on behalf of the appellants on the following remarks of Shah J. at page 752 :- When the original defendant, who was undoubtedly an agriculturist, died, the property deceased to belong to him ; and though for execution purposes it is treated as the estate of the deceased in the hands of his legal representative it must be taken to belong at the date of the attachment to the legal representative.