1. The question in this appeal is one arising in execution proceedings. The plaintiff obtained a decree in suit No. 1549 of 1920 against one Ramchandra and two other partners in a partnership matter. There was an appeal to the High Court, but before the appeal, a darkhast was presented for attachment and sale of the property of Ramchandra defendant No. 1. It happened that Ramchandra died between the application for execution and the attachment of the property, and the property passed to his legal representative, his son Shamrao, who is the present appellant. Shamrao contended that being an agriculturist the property could not be attached and sold. That application was decided against him on January 16, 1926. On March 15, 1926, the High Court passed a preliminary decree, and there was a final decree on October 1, 1926. The execution proceedings were continued and proclamations were issued for sale of the properties, but separately as regards the right, title and interest of the deceased defendant No. 1 Ramchandra, and then Shamrao contended again that he was an agriculturist and the property attached could not be liable to be sold in execution. The learned First Glass Subordinate Judge of Sholapur held that this plea had been raised before by the judgment-debtor, as appears from Exhibit 16, and the order for attachment had been passed by his predecessor notwithstanding the plea, and that it was not necessary to go into that question again, as the question for consideration would be whether the deceased defendant Ramchandra was an agriculturist when the darkhast was given, and not what was the status of the present heirs of the said defendant, as the order for attachment was passed against property being of the right title and interest of the judgment-debtor Ramchandra only and not of the heir Shamrao himself. The learned Subordinate Judge also held that as there was no suggestion that the deceased debtor Ramchandra was an agriculturist, it was not necessary to take evidence about the existence or otherwise of the present heir's personal status as an agriculturist. The legal representative of the deceased Ramchandra has made this appeal, and the first question which arises is whether the decree having been passed personally against Ramchandra, the father, who was not an agriculturist, the property under attachment can be considered to be the property of an agriculturist under the Dekkhan Agriculturists' Relief Act, and whether Shamrao can be allowed to raise this plea.
2. It has been contended by the learned advocate for the respondent that the decree being against the estate of Ramchandra, and the present appellant being his legal representative, the property to be attached and sold must be regarded as the property of Ramchandra and not of Shamrao, and therefore it is not open to him to raise the plea of the status of an agriculturist. This point has been twice considered comparatively recently in this Court, the latest case being Mathuradas v. Mahadu (1929) 32 Bom. L.R. 320, to which I was a party. Now that case lays down that--
Section 22, Clause (2), of the Dekkhan Agriculturists' Belief Act does not apply to the representative in interest or the heirs of the deceased judgment-debtor.
The words 'to the possession of which ho is entitled' in that clause refer to a judgment-debtor who is living and entitled to the possession of the property at the date of the passing of the decree or order, and do not cover the case of a deceased judgment-debtor.
The head-note, however, is not very clear. That case was founded on the case of Maruti v. Martand : (1922)24BOMLR749 . Now according to the decision in that case:--
The immoveablo property belonging to an agriculturist is, by virtue of the provisions of Section 22 of the Dekkhan Agriculturists' Relief Act, immune from attachment and sale in execution of a money decree against him. The immunity, however, ceases as soon as the property passes on his death into the hands of his legal representatives who are not themselves agriculturists.
3. The remarks of Shah J. are (p. 752):
When the original defendant, who was undoubtedly an agriculturist, died, the proporty ceased 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'.
This is the converse of the present case. In that case the judgment-debtor was an agriculturist and at his death the property passed to his heir who was a non agriculturist. The effect of the decision is to show that the immunity which attached to it while it was the property of the agriculturist does not extend to the property in the hands of his heirs. But the attachment of the above property of the judgment-debtor within the meaning of Section 50, Civil Procedure Code, for purposes of execution, would represent the estate of the deceased judgment debtor in the hands of his legal representative. Undoubtedly, on this ruling the converse would apply, viz., if the property belong to a non-agriculturist debtor who dies and passes into the hands of his heir who is an agriculturist, then if he is an agriculturist he would be entitled to the benefit of the Dekkhan Agriculturists' Relief Act. This is quite clear from the judgment of Macleod C.J. in Maruti v. Martand, where he said (p. 751):
It seems to me that the section clearly denotes that the only question to be decided when immoveable property is sought to be attached for a money decree, is whether at that time it belongs to an agriculturist or not, and we cannot read into the section any further words so as to make the section read that the property should still be protected from attachment if it once belonged to an agriculturist judgment-debtor, although it has passed by inheritance or otherwise into the hands of a person who is not an agriculturist.
4. In Shah J.'s judgment it is said (p. 752 ) :
It is clear that Section 22 really provides that immoveable property belonging to an agriculturist shall not be attached or sold in execution of any decree or order passed whether before or after this Act comes into force. In the absence of any indication to the contrary that would mean that at the date of the attachment or sale the property must belong to an agriculturist. When the original defendant, who was undoubtedly an agriculturist, died, the property ceased 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. Unless the legal representative is shown to be an agriculturist, the provisions of Section 22 cannot be held to afford an answer to the application for execution against him.
This is a converse case and with reference to the remark, viz., 'unless the legal representative is shown to be an agriculturist', the effect of the decision is, that the point to be considered is whether the property belongs to an agriculturist at the date of the application for execution. The view of the learned Subordinate Judge that the status of the deceased Ramchandra was not of an agriculturist is correct, but it was open to the appellant to show that he was an agriculturist, and, therefore, the property of Ramchandra in his hands was not liable to attachment and sale.
5. As regards the other point, it is difficult to say how this contention is not barred by res judicata. There is only one execution proceeding in the present case and that has been continued after the judgment of the High Court. It has been argued by the learned advocate for the appellant that any proceedings taken before the judgment of the High Court and any decision on the question of agricultural status passed before that decree is of no avail now when the question is re-opened. In support of that proposition he has quoted Nanchand v. Vinthu ILR (1894) 19 Bom. 258. The facts of that case were entirely different. It has been laid down in that case that:--
Where the High Court confirms, on appeal, the decree of a Subordinate Court, such confirmation has the same effect as an order of reversal would have had, in so far as it leaves the decree of the High Court as the only decree which exists for the purpose of execution, and the decree of the lower Court becomes incorporated with it.
6. Now the facts of that case are that the plaintiff obtained a decree for redemption of certain lands. Before the appeal the plaintiff presented an application for execution. That application was dismissed as the plaintiff failed to produce a copy of the mortgage bond. The defendant preferred an appeal to the High Court which confirmed the lower Court's decree. The plaintiff presented a second darkhast. It was held that after the passing of the High Court decree any order of dismissal of the first execution proceeding would operate as res judicata as regards the subsequent application for execution of the decree of the High Court. This is entirely a different case from the present case where there is only one proceeding which has throughout gone on from the time of the passing of the Subordinate Judge's decree up to the present time, and I cannot go so far as to say that any order passed in the same execution proceeding would not operate as res judicata at a subsequent stage of the same proceeding. It has been found on one occasion in this proceeding by the First Class Subordinate Judge that the applicant was not an agriculturist. It is not open to him to raise the contention at a later stage in the same proceeding. I am, therefore, of opinion that the contention is barred by res judicata, and the final order of the lower Court is, therefore, correct, although I do not agree with that part of the order that relates to the question to be considered being the status of the deceased Ramchandra.
7. The decree must, therefore, be confirmed and the appeal dismissed with costs.
8. I agree. The first and the crucial point is whether, on the date of the attachment and not on the date of the application for attachment the property belongs to the agriculturist and is immune under Section 22 of the Dekkhan Agriculturists' Relief Act. It has been held in Maruti Babaji v. Martand Narayan ILR (1922) 47 Bom. 44, 24 Bom. L.R. 749 that where the deceased judgment debtor was an agriculturist and the property passed to his heir, a non agriculturist, before the date of the attachment, it ceased to be immune. Similarly, in the present case, if the appellant was an agriculturist and the property passed to him from his father a non-agriculturist before it was attached even though after the application for attachment it would be immune.
9. The question, however, is not open, inasmuch as the appellant raised the same plea when notice of the application for attachment was served-and he did not proceed with that contention, and the property was attached although he had raised precisely the same contention of agriculturist and of immunity under Section 22 of the Dekkhan Agriculturists' Relief Act. In the same darkhast such a finding is, in my opinion, clearly res jvdieata. and it does not cease to become so by reason of the decree of the High Court confirming the decree of the lower Court. The case in Nan-chand v, Vithu (1894) I.L.R. 19 Bom. 258 was quite different. The first darkhast was given before the appeal to the High Court and was not proceeded with because the second appeal was filed. After the second appeal was decided in favour of the respondent a second darkhast was filed and it was held that the second darkhast could not be filed because the first darkhast had not been proceeded with.
10. For these reasons, I agree that the appeal fails and must be dismissed with costs.