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Jivan Bhaga, Vs. Hira Bhaiji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom363
AppellantJivan Bhaga,
RespondentHira Bhaiji
Excerpt:
civil procedure code (act xiv of 1882), section 266(c) - building site--agriculturist bhagdar--bhagdari act (bom. act of 1862)--decree--execution against bhag. - - and he has decreed that the attachment be raised from the site, even though this should involve the consequence which he foresees that thus the attachment will be defeated altogether through the legally inseparable character of the bhag. there must be an occupation in good faith for the purposes of agriculture, in order to get the benefit of the exemption. this clearly was not intended.west, j.1. the appellant in this case having obtained a decree against a bhagdar attached his bhag in execution. as a part of the bhag he attached the gabhan or site whereon stands the respondent's house. the assistant judge has held that the house itself is exempted from attachment, as being that of an agriculturist. the site, therefore, he thought, must be equally exempt; and he has decreed that the attachment be raised from the site, even though this should involve the consequence which he foresees that thus the attachment will be defeated altogether through the legally inseparable character of the bhag.2. bombay act v of 1862 provides that a bhag shall not be subdivided in execution of a decree, and that a homestead or gabhan appendant or appurtenant to a bhag shall not be attached or.....
Judgment:

West, J.

1. The appellant in this case having obtained a decree against a bhagdar attached his bhag in execution. As a part of the bhag he attached the gabhan or site whereon stands the respondent's house. The Assistant Judge has held that the house itself is exempted from attachment, as being that of an agriculturist. The site, therefore, he thought, must be equally exempt; and he has decreed that the attachment be raised from the site, even though this should involve the consequence which he foresees that thus the attachment will be defeated altogether through the legally inseparable character of the bhag.

2. Bombay Act V of 1862 provides that a bhag shall not be subdivided in execution of a decree, and that a homestead or gabhan appendant or appurtenant to a bhag shall not be attached or sold apart from it. In Section 266(c) of the Code of Civil Procedure, it is provided that the materials of houses belonging to, and occupied by, agriculturists shall not be liable to attachment. In the case of Radhakisan Hakumji v. Balvant Ramji I.L.R., 7 Bom., 530 it is said that the building contemplated is one dwelt in by an agriculturist as such. There must be an occupation in good faith for the purposes of agriculture, in order to get the benefit of the exemption. Here the respondent occupies, in one sense, as an agriculturist no doubt, but in a more special sense as a bhagdar. Except as a bhagdar he could not have held the particular house in question, and it is as part of a bhag that the site has been attached. The site does not fall within the words of the Civil Procedure Code, Section 266(c); but, apart from that, we have here the Bhagdari Act dealing with a special and very limited class of property. We have also the law of procedure subsequent in date, but of general application, and the terms of the two are such that taken without qualification they might together prevent any execution at all against a bhag. This clearly was not intended. The purpose of the more special Act was not that execution should be prevented altogether, but that it should proceed against the bhag as an indivisible aggregate, including the gabhan; and where a bhagdar holds in that character, it predominates over his other character as an agriculturist. He does not hold as an agriculturist, and only as such, and it was for agriculturists in the strictest sense and for an agriculturist in that sole character that the protection of Section 266(c) of the Civil Procedure Code was intended. This section being thus construed, room is left for the operation of the other Act applicable to this case so as not to defeat the general purpose of the law, and both laws stand together, the more special operating as a partial exception to the other-Ex parte Attwater; In re Turner L.R., 5 Ch. Div., 27 ; Dowling v. Betjemann 2 J. & H. 544 ; Fenn v. Bittleston 7 Ex., 152 ; and James v. Cochrane 7 Ex. 170 .

3. For these reasons we reverse the order of the Assistant Judge and restore that of the Subordinate Judge, with costs.


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