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Balkrishna Tulsidas Vs. Sarupchand Purshottamdas - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 414 of 1924
Judge
Reported in(1926)28BOMLR656; 95Ind.Cas.1017
AppellantBalkrishna Tulsidas
RespondentSarupchand Purshottamdas
DispositionAppeal dismissed
Excerpt:
.....against him as an agriculturist and even though ib might have been decided in the suit that at the time the decree was passed ha was not an agriculturist.;mulji v. goverdhandas (1922) 24 bom. l.r. 1291, distinguished - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not..........seeks for the benefit of that section, it must be shown that he was an agriculturist at the time the decree was passed. section 22 enacts 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, unless it has been specifically mortgaged for the repayment of the debt to which such decree or order relates, and the security still subsists,' accordingly, an agriculturist can plead exemption from attachment for his immoveable property, although the decree was not passed against him as an agriculturist, and even although it might have been decided in the suit that at the time the decree was passed he was not an agriculturist. the words ' before or after this act.....
Judgment:

Norman Macleod, Kt., C.J.

1. On September 23, 1913, the defendant appeared before me, while sitting on the Original Side of the High Court, in answer to a summons taken out in Suit No. 802 of 1918, whereby the plaintiff claimed from the defendant Rs. 4,748 being the price of a packet of diamonds purchased by him as mentioned in the plaint. The defendant appeared in person and admitted the claim, and a decree was passed. Till the present time the plaintiff has not succeeded in recovering anything out of the decretal amount.

2. In 1922, the plaintiff took out a Darkhast No. 117 of that year in the Court of the First Class Subordinate Judge at Thana in which he described the judgment-debtor as an agriculturist. Accordingly, the proceedings were ordered to be sent to the Collector in order that he might sell the properties attached by virtue of the Circular appearing at p. 107 of the High Court Manual. The Collector returned the proceedings without the properties being sold as there was no bidder for the same. Thereafter, it was brought to the notice of the Court that the description of the judgment-debtor's occupation in the darkhast was erroneous. He was not an agriculturist, and he could not be an agriculturist as far as the suit was concerned, since the decree, out of which those proceedings arose, was passed by the High Court, For those reasons, the Subordinate Judge held that, if the judgment-debtor's case was that he ac quired the status ofan agriculturist, after the decree was passed, then the obvious reply seemed to be that his changed status would not affect the plaintiff who had successfully obtained a decree against him as a non-agriculturist. The Judge, therefore, overruled the contention of the judgment-debtor that an issue should be raised to decide this status, and acceded to the request made on behalf of the decree-holder that the darkhast should be amended as regards the occupation of the judgment-debtor and the properties belonging to the judgment-debtor should be sold by the Court.

3. The appellant judgment-debtor has no case whatever on the merits. He does not claim that his properties cannot be sold by virtue of a. 22 of the Dekkhan Agriculturists' Relief Act. He merely objects to the property being sold by the Court instead of by the Collector. Considering all the circumstances, that the decree was passed in 1913, that the judgment-creditor has recovered nothing at all during all these years, and that in all probability the objection was taken more for the purpose of delay than for anything else, we see no reason to interfere with the decision of the Subordinate Judge.

4. We may point out, however, that the decision referred to in Mulji v. Goverdhandas (1922) 21 Bom. L.R.. 1291 would not be applicable to the facts of this case. The defendant in that case made an application in execution proceedings for instalments under Section 20 of the Dekkhan Agriculturists' Relief Act. The decree had been passed on the Original Side of the High Court against him ex parte describing him as a trader. Section 20 of the Dakkhan Agriculturists'Relief Act only applies to cases in which a decree has been passed against an agriculturist. Therefore, if a judgment-debtor seeks for the benefit of that section, it must be shown that he was an agriculturist at the time the decree was passed. Section 22 enacts 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, unless it has been specifically mortgaged for the repayment of the debt to which such decree or order relates, and the security still subsists,' Accordingly, an agriculturist can plead exemption from attachment for his immoveable property, although the decree was not passed against him as an agriculturist, and even although it might have been decided in the suit that at the time the decree was passed he was not an agriculturist. The words ' before or after this Act comes into force ' inserted by Act XXII of 1882. Section 9(1), make it clear that it was intended that it was not material whether the judgment-debtor was an agriculturist at the time the decree was passed, since, if the decree was passed before the Act came into force, no question of his status could have arisen, It seems obvious, then, that under Section 22 the important question is whether the property sought to be attached belongs to an agriculturist at the time of the attachment, and, then, it would be open to the person against whom execution is sought to plead that as he was an agriculturist, the property could not be attached, although at the time the decree was passed, nothing was said as regards his status as an agriculturist.

5. The appeal is dismissed with costs.

Coyajee J.

6. I agree.


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