1. This appeal arises out of a suit filed by the mortgagee to recover the mortgage debt, with costs and further interest by sale of the mortgaged property. The first defendant replied that he was an agriculturist and claimed the benefits of the Dekkhan Agriculturists' Relief Act. The lower Courts have allowed the first defendant the benefits of the Act, and the question involved in this appeal is whether he is entitled to them in this case. The particular shape which they have assumed is the form of instalments which have been granted at the rate of Rs. 150 a year. Whether the first defendant is an agriculturist or not turns upon the construction of Sub-section (2) of Clause (6) of Section 2 of the Dekkhan Agriculturists' Relief Act. It is there provided that 'the term 'agrictlturist', when used with reference to any suit or proceeding, shall inculude a person who, when any part of the liability which forms the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then definded by law.' The mortgage bond in suit here was executed in 1871, and under the mortgage it was provided that the mortgagor should not redeem before 1886. It is contended before us that the first defendant's liability was not incurred till ]886, inasmuch as it was not till then that re-payment of the debt became obligatory, and that we understand is the view adopted by the learned Judge below. But it does not appear to be possible to put that construction fairly upon the words of the section. What was the liability incurred here? The liability incurred was to pay back the money borrowed by the mortgagor, and it is clear that that liability was incurred when the money was borrowed in 1871. That is not the less so by reason of the stipulation that the payment was not due till 1886 : the liability to re-pay in 1886 was incurred in 1871.
2. As to the other argument which was addressed to us, it is enough to say that since this liability was incurred in 1871, and since the Act of 1879 contained the first legal definition of the word ' agriculturist' it follows that, when he made this mortgage, the first defendant, whatever may have been his occupation in fact, could not have been an agriculturist within the meaning of that word as then defined by law,' for there was then no such legal definition existing.
3. The result is that the first defendant is not entitled to the benefit of the Dekkhan Agriculturists' Relief Act. This appeal must be allowed and there must be the ordinary decree for sale under Section 88 of the Transfer of Property Act in the form prescribed by the Civil Procedure Code.
4. The mortgagee will be entitled to add the costs of this appeal to his mortgage debt.