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Maneklal Girdharlal Soni Vs. Mahipatram Mansukhram Patel - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 30 of 1926
Judge
Reported inAIR1927Bom492; (1927)29BOMLR1109; 103Ind.Cas.898
AppellantManeklal Girdharlal Soni
RespondentMahipatram Mansukhram Patel
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), sections 21, 2(2)-decree-execution-arrest-judgment debtor can prove his status as agriculturist at the time of arrest or at the date when the liability arose-ex parte money decree-status of agriculturist can be proved in execution proceedings-status at the date of arrest or at the date of the decree.;under section 21 of the dekkhan agriculturists' relief act 1879, the material date for the determination of the status of an alleged agriculturist is the date of the attempted arrest. but by reason of the definition of the term 'agriculturist' in section 2(2) of the act, that determination may also import the determination of hie status at the date when the liability arose.;a person, who is sued as a non-agriculturist and who fails to appear..........of the bombay presidency by notification no. 278 dated january 21, 1903, and the defendant in the decree dated july 21, 1905, could be an agriculturist as defined by the dekkhan agriculturists' relief act. there is, therefore, no conflict between the decision of bai diwali v. patel girdhar i.l.r. (1908) 32 bom. 391 10 bom. l.r. 577 and that in the case of balchand chaturchand v. chunilal jagjivandas i.l.r. (1913) 37 bom. 486 15 bom. l.r. 387.19. the wording of section 21 of the dekkhan agriculturists' relief act, however, is quite different: 'no agriculturist shall be arrested or imprisoned in execution of a decree for money passed whether before or after this act comes into force.'20. in the case of ambanna v. kallappa (1925) 28 bom. l.r. 567 it was held that a judgment-debtor who had.....
Judgment:

Amberson Marten, Kt., C.J.

1. In my referring judgment I have indicated some of the difficulties which appear to me to exist in construing Section 21 of the Dekkhan Agriculturists' Relief Act. But the decisions there cited show that Sir Norman Macleod and Mr. Justice Coyajee in a series of cases have decided that Section 21 exempts from arrest in execution of a money decree any defendant who was an agriculturist at the time of the arrest. I have had the advantage of reading the judgments of my brothers Crump and Patkar which arrive at the game conclusion. The wording admits of that view being taken, and under all the circumstances I am not prepared to dissent from their opinion as to the true construction of the section, although personally I might have arrived at a different conclusion, had I been sitting alone, and the matter had been res integra. But I do so irrespective of the words 'passed whether before or after this Act comes into force,' which were added by Section 8 of Act XXII of 1882. These words were, I think, only added to make the Act retrospective, as is the case with Section 20, and thus to avoid the decision of the Full Bench in Dipchand v. Gokaldas I.L.R. (1880) 4 Bom. 363

2. In holding, however, in answer to the first question, that the material date for the determination of the status of an agriculturist under Section 21 is the date of the attempted arrest, the definition in Sub-sections 1 and 2 of Section 2 of the Act must be borne in mind. Consequently, under Sub-section 2 a defendant, who was an agriculturist, 'when any part of the liability which forms the subject of the suit or proceeding was incurred,' will be exempt from arrest, even though at the date of the arrest he may not be an agriculturist within the meaning of Sub-section 1 standing by itself.

3. It follows that, on the above construction of Section 21, the second question should be answered in the affirmative. It is sufficient for a defendant to be an agriculturist at the date of the arrest, irrespective of whether he was an agriculturist at the date of the decree. Consequently, it is unnecessary to consider whether that decree was ex parte or otherwise. I accordingly confine my judgment to Section 21, and give no opinion on the cases on Section 20 or Section 15B.

4. I am sensible that the above construction may in certain cases lead to what may appear to be illogical results. But the Act is so badly drawn that it is difficult to give it any meaning which would produce consistent results. During the arguments before us, the more the various sections of the Act were closely examined, the more did the drafting appear defective. But this unfortunately is by no means an uncommon result in cases on this particular Act. And it may be that the subject is really too wide and difficult to be dealt with in a concise manner having regard to the large variety of cases affected by the Act.

Crump, J.

5. The answer to the first question referred to the Full Bench depends upon the correct construction of Section 21 of the Dekkhan Agriculturists' Relief Act. That section is as follows:-

No agriculturist shall be arrested or imprisoned in execution of a decree for money passed whether before or after this Act comes into force.

6. The last ten words of the section were added by Section 8 of Act XXII of 1882, and it will be convenient to consider first exactly what they mean. In Dipchand v. Gokaldas I.L.R. (1880) 4 Bom. 363 the High Court held that the section, as it then stood, i.e., without the last ten words, was inapplicable to any case in which the decree had been made before the Act came into force. That case was decided in 1880. The Act came into force on November 1, 1879, and the result was that in spite of Section 21 agriculturists against whom decrees had been made before that date could be arrested and imprisoned in execution. Section 8 of the amending Act of 1882 was enacted for the purpose of extending to such agriculturists the protection afforded by Section 21. It may be noted that similar words were by Section 9 of the same Act inserted in Section 22, with the same object. In my judgment, the sole object of these amendments was to give retrospective effect to these two sections by making them applicable to the case of agriculturists against whom decrees had been made before November 1, 1879, the date on which the Dekkhan Agriculturists' Belief Act came into force. With deference I am unable to accept the view expressed as to the scope of these sections in Ambanna v. Kallappa (1925) 28 Bom. L.R. 567 and Balkrishna v. Sarupchand : (1926)28BOMLR656 , in so far as that view seeks to extend the scope of the words under discussion beyond what I have indicated. In the present case we are dealing with a decree passed after the Act came into force, and Section 21 must be interpreted as though it stood without the last ten words; that is, as if it ran as follows: 'No agriculturist shall be arrested or imprisoned in execution of a decree for money.

7. There is a cynical saying that speech is given to us to conceal our thoughts. The author of the saying is unknown, but it might plausibly be conjectured that he was a lawyer embittered by a perusal of the Dekkhan Agriculturists' Relief Act. It is notoriously a badly drafted statute. It is extremely difficult to construe it as a logical whole; and parts of it are so obscure as almost to baffle enquiry. If any one says that I exaggerate, let him read and endeavour to understand Sections 2 and 3. The arrangement of the subject matter is faulty; there is, for instance, no clear distinction between those provisions which apply to the trial of suits, and those which apply to proceedings in execution. The result has been to cause much uncertainty and much waste of time and the construction of any section is liable to lead to anomalous results. These difficulties have been further increased by the partial extension of the Act which has destroyed any coherence which it may possess as a whole. The multitude of notifications makes it a matter of uncertainty whether any section does or does not apply in any district. In these circumstances it is difficult to interpret any one section in the light of any other or to regard a decision upon one section as being in any sense a guide to the meaning of another. Since the enactment of the Usurious Loans Act X of 1918 much of the Dekkhan Agriculturists' Relief Act is out of date. But until the Legislature can find time or inclination to deal with the existing chaos the Courts must make the best of it and this in my judgment can only be done by confining attention to each section as it falls to be interpreted.

8. Section 21 is plainly designed to protect the agriculturist. That is the policy of the Act. It can be read as enabling the agriculturist to claim protection when a judgment-creditor seeks to arrest or imprison him in execution of a money decree. That indeed is the meaning of the words used. I have not yet found any practical difficulty in so interpreting it. If that is the meaning, the party claiming protection must show that he is at the date of the attempted arrest or imprisonment an agriculturist. Therefore he must show that he is within the definition contained in Section 2 of the Act. He may be either an agriculturist within the general definition contained in Section 2 'First' or he may come under the special and inclusive definition in Section 2 'Secondly' which is also applicable as Section 21 forms part of Chapter III. Thus, though the question of status arises for consideration at the time of the proposed arrest or imprisonment, the answer may have to be given with reference to the time when the liability was incurred. In short the judgment-debtor who seeks the protection of Section 21 may show either that he is now within the general definition or that he was within that definition at the date when the liability was incurred. And the latter date would, in the case of an application for execution, be the date of the decree. That is, in my judgment, the answer to the first question referred to us.

9. As to the second question, it follows that a man who suffers a money decree to be passed against him as a non-agriculturist cannot be precluded from showing that at the date of the proposed arrest or execution he is within the general definition. Whether he can come within Section 2 'Second' is less clear. To do so he must prove that he was within the general definition at the date of the decree. He can do so unless there is any principle of law standing in his way. The only principle invoked is that of res judicata. To make out that bar there must be a decision within the terms of Section 11 of the Civil Procedure Code. Though Section 11 does not apply proprio vigore to proceedings in execution, yet the same principles are applicable as a matter of general law : Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 IndAp 37. Now a matter in a suit is not heard and finally decided unless there is an actual finding on an issue or unless the decree necessarily involves such a finding, A Court having jurisdiction can make a decree for. money and such a decree does not necessarily involve a finding that the defendant is not an agriculturist unless the existence of that status would oust the Court's jurisdiction. In certain cases a Court cannot make such a decree against an agriculturist by reason of Section 11 of the Dekkhan Agriculturists' Relief Act and where a party suffers such a decree to be passed it follows by necessary implication that the defendant is not an agriculturist at the date of the decree. That is the ratio decidendi in Mulji v. Goverdhandas : AIR1923Bom36 , and in such a case if the date of the decree is the crucial date the question of status may be res judicata for the purpose of subsequent execution proceedings. It must be here remembered that this case is upon Section 20 and not upon Section 21. And the crucial date in cases under Section 20 is the date of the decree only. But the mere failure to appear can have no such effect in a case where no question of jurisdiction is involved. It is not imperative that a party should appear and claim his status and defend the suit. It cannot be said that he might and ought to have done so. He may waive the special procedure introduced for his own benefit and suffer the Court to pass a decree if he does not desire to contest the claim in any respect. Indeed, even where he does appear and sets up his status, if the amount of the claim is not disputed the special procedure of the Act need not necessarily be followed. (Vide Section 13). In the case before us it is not suggested that the Court could not make a money decree against an agriculturist, and the mere description of the defendant in the plaint is immaterial. In my opinion in this case it would be open to defendant to show that he was an agriculturist at the date of the decree not as a ground for avoiding the decree, but as a ground for establishing his status at the date of the arrest by virtue of the second and special branch of the definition in Section 2 of the Act.

10. In view of the arguments advanced before us I desire to say a few words about the cases cited. There are two decisions on Section 21 : Hira v. Daula : (1926)28BOMLR539 and Ambanna v. Kallappa (1925) 28 Bom. L.R. 567. In the first of these cases the word 'only' in the head-note is not warranted by the judgment of the learned Chief Justice. The question whether the defendant was an agriculturist at the date of the decree and, if so, whether he could claim the benefit of Section 21 was not considered. It was argued on the basis that he was not an agriculturist at the date of the decree. In the second case I find nothing which does not support the views which I have expressed with the exception of the interpretation sought to be placed upon the last ten words of the amended section. On this I have already stated my opinion. These two cases are the only direct authority upon the construction of Section 21. The other cases cited are upon other sections of the Act, and in my judgment there are good grounds for distinguishing them. First, as to Section 20. I have already dealt incidently with Mulji v. Goverdhandas : AIR1923Bom36 as regards the question of res judicata. In other respects the case turns on the words 'the amount of any decree passed...against an agriculturist.' There cannot be such a decree unless the defendant is an agriculturist at the date of the decree. The same view is taken in Balchand v. Chunilal : (1913)15BOMLR387 . Then we have decisions on Section 15 B. That section is only applicable in the case of 'a decree for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (z).' A reference to these clauses shows that the party who desires to take the benefit of Section 15B must be an agriculturist at the date of the suit. That is the ratio decidendi in Devu v. Revappa : (1922)24BOMLR370 . Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153 is to the same effect. The difference is that in the first case defendant was not an agriculturist at the date of the suit or the decree. In the second case there had been no decision. The decree was ex parte and it was held that the point was not res judicata. In Narayan v. Dhondo : (1926)28BOMLR305 this principle is extended to a case where there had already been one darkhast and the plea of status had not been raised. Different considerations would arise in such a ease, and possibly that decision may require further consideration, should the point again arise. Ordinarily, a judgment-debtor who fails to raise a plea in bar of execution cannot raise that plea in a subsequent stage of execution proceedings. But this point is outside the case now before us.

11. The last case cited is Balkrishna v. Sarupchand : (1926)28BOMLR656 . The decree there was a decree for money. Section 22 of the Dekkhan Agriculturists' Relief Act had therefore no application and was indeed not invoked by the defendant. His plea was that as he was an agriculturist the decree should be transferred for execution to the Collector. Whether that should or should not be done would depend upon the applicability of any notification under Section 68 of the Code of Civil Procedure. The remarks upon Section 22 of the Dekkhan Agriculturists' Relief Act are obiter. They are based on the wording of the first paragraph of the section. The construction adopted is in accordance with the earlier case of Maruti v. Martand : (1922)24BOMLR749 and appears to be in accordance with the plain meaning of the words. It is unnecessary to pause here to enquire whether Section 22 has ever been extended to the District of Thana where the property in the first of these two cases was situated.

12. It will thus be seen that the decisions upon Section 21 of the Act are in accordance with the opinion which I have formed from the words of that section. The other cases deal with other sections in which a different form of words is used, As I have already said these decisions cannot assist us in construing Section 21.

13. I would answer the questions propounded in the following terms :-

(1) The material date for the determination of the status is the date of the attempted arrest. But by reason of the definition of agriculturist in Section 2(2) that determination may also import the determination of the status at the date when the liability arose.

(2) The mere failure to appear and urge the status at the hearing of the suit does not preclude the defendant from urging that he is an agriculturist at the date of the arrest or imprisonment, and for the purposes of that plea he is not debarred from urging, if necessary, that he was an agriculturist at the date of the decree.

Patkar, J.

14. The first question which is referred to the Full Bench is :-

Whether under Section 21 of the Dekkhan Agriculturists' Relief Act, the material date for the determination of the status of the alleged agriculturist is the date of the attempted arrest, or the date of the decree or how otherwise ?

15. Several cases were cited during the course of the argument bearing on the construction of Section 15B, Section 20, and Sections 21 and 22 of the Dekkhan Agriculturists' Relief Act. The wording of the sections is different and the cases decided under one section would not necessarily be of any use with regard to the construction to be put on any other of the sections.

16. Under Section 15B the decree must be for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (z). It was, therefore, held in the case of Devu v. Revappa : (1922)24BOMLR370 that the description of the suit in Section 3 was not confined to the relief claimed in the suit, but also included the status of the parties. It was, therefore, held in that case that the person claiming the benefit of Section 15B and making an application for instalments must be an agriculturist at the date of the suit and the decree. The next case under Section 15B was the case of Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153 where it was held that where a decree was passed ex parte, the defendant could, in execution proceedings, show that he was an agriculturist at the date of the decree and claim instalments under Section 15B. The material date, therefore, for the determination of the status of the alleged agriculturist under Section 15B was held to be the date of the decree, following the decision of Devu v. Revappa, and the defendant was allowed to prove in proceedings in execution of an ex parte decree that he was an agriculturist at the date of the decree. The principle of Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153 was extended in the case of Narayan v. Dhondo (1925) 28 Bom. L.R. 305, which was also a case where instalments were claimed under Section 15B of the Dekkhan Agriculturists' Relief Act, and it was held that the defendant could, in execution proceedings, show that he was an agriculturist at the date of the decree in spite of the fact that he had not claimed the privilege in previous execution proceedings arising out of the same decree. The material date for the determination of the status of the alleged agriculturist in all these three cases, which were decided under Section 15B, was, therefore, held to be the date of the decree, and this view proceeded upon the particular words of Section 15B which involved the result that the alleged agriculturist had to prove that he was an agriculturist at the date of the decree.

17. The cases decided under Section 20 of the Dekkhan Agriculturists' Relief Act proceeded on the ground that the section referred to a decree passed against an agriculturist, and it was therefore held that the material date for the determination of the status of the alleged agriculturist was the date of the decree. In Balchand v. Chunilal : (1913)15BOMLR387 it was held that Section 20 did not apply to the case of a person who was not an agriculturist at the date of the decree whatever his status might be thereafter when execution came to be taken out against him. In the case of Mulji v. Goverdhandas : AIR1923Bom36 an application was made under Section 20 for instalments in execution of a decree which was passed on the Original Side of the High Court of Bombay, The decision proceeded on the ground that under Section 20 the decree must be one which is passed against an agriculturist. As the decree was passed on the Original Side of the High Court, the decision necessarily involved a finding that the defendant was not an agriculturist at the date of the decree having regard to the provisions of Section 11 of the Dekkhan Agriculturists' Relief Act, and it further held that any fact which was decided in the suit expressly or by necessary implication could not be challenged in execution proceedings.

18. It was further argued that these decisions under Section 20 conflicted with the view adopted in the case of Bai Diwali v. Patel Girdhar I.L.R. (1908) 32 Bom. 391, 10 Bom. L.R. 577 in which instalments were granted under Section 20, although the decree was passed on July 21, 1905, and the Dekkhan Agriculturists' Relief Act was not extended to the Ahmedabad District till August 15, 1905. It was argued that though the decree passed was not one against an agriculturist as defined by the Dekkhan Agriculturists' Relief Act, instalments were granted under Section 20 in execution. But Sections 2 and 20 were extended to the whole of the Bombay Presidency by Notification No. 278 dated January 21, 1903, and the defendant in the decree dated July 21, 1905, could be an agriculturist as defined by the Dekkhan Agriculturists' Relief Act. There is, therefore, no conflict between the decision of Bai Diwali v. Patel Girdhar I.L.R. (1908) 32 Bom. 391 10 Bom. L.R. 577 and that in the case of Balchand Chaturchand v. Chunilal Jagjivandas I.L.R. (1913) 37 Bom. 486 15 Bom. L.R. 387.

19. The wording of Section 21 of the Dekkhan Agriculturists' Relief Act, however, is quite different: 'No agriculturist shall be arrested or imprisoned in execution of a decree for money passed whether before or after this Act comes into force.'

20. In the case of Ambanna v. Kallappa (1925) 28 Bom. L.R. 567 it was held that a judgment-debtor who had been arrested in execution of a decree could plead the status of an agriculturist, under Section 21 of the Dekkhan Agriculturists' Relief Act, in execution proceedings. The same view was taken in Hira v. Daula : (1926)28BOMLR539 , where it was held that under Section 21 the question is whether a person sought to be arrested is an agriculturist at the date of the arrest, and if he is, then he is exempt. I think the wording of Section 21 points to the date of the arrest as the material date for the determination of the status of the alleged agriculturist. The wording also of Section 22 shows that the material date for the determination of the status of an agriculturist under Section 22 is the date of the attachment or sale in execution proceedings. The words 'whether before or after this Act comes into force' were added by virtue of the decision in Dipchand v. Gokaldas I.L.R. (1880) 4 Bom. 363 in Section 21 by Act XXII of 1882, Section 8, in order to give Section 21 a retrospective effect with regard to the decrees for money passed before the Act. I think, therefore, that the material date for the determination of the status of the alleged agriculturist under Section 21 of the Dekkhan Agriculturists' Relief Act is the date of the attempted arrest. Having regard to the object of the Act, namely, to relieve the agricultural classes in certain parts of the Deccan from indebtedness and also having regard to the wording of Section 21, I think it would be proper to exempt an agriculturist from arrest or imprisonment in execution of a decree for money though he was not an agriculturist at the date of the suit or decree.

21. There is, however, an extended definition of an agriculturist in Section 2, Clause (2), with reference to Chapter III in which Section 21 occurs, 'The term 'agriculturist' when used with reference to any suit or proceeding, shall include 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 defined by law.' The liability forming the subject-matter of the proceeding in execution would be the liability under the decree, and the word 'agriculturist' in Section 21 would, therefore, include a person who was an agriculturist at the date of the decree. The result, therefore, in my opinion, is that the person who was an agriculturist at the date of the decree would be exempt from arrest and imprisonment under Section 21 though he ceased to be an agriculturist thereafter, and a person who was not an agriculturist at the date of the decree but who was an agriculturist at the date of the arrest would also be equally exempt from arrest.

22. It is argued on behalf of the respondent, firstly, that the material date for the determination of the status of an alleged agriculturist is the date of the attempted arrest, and, secondly, that the material date for the determination of the status of an alleged agriculturist is also the date of the decree, and that as the decree sought to bo executed in the present case is an ex parts decree, he may be allowed to prove that he was an agriculturist at the date of the decree if he is unable to prove that he was an agriculturist at the date of the arrest. I think that as in this case there is no express decision or a finding by necessary implication that the defendant was not an agriculturist, he may be allowed in proceedings in execution of the ex parte decree also to prove that he was an agriculturist at the date of the decree.

23. I would, therefore, answer the questions referred to the Full Bench in the same manner as my learned brother Mr. Justice Crump.

24. The questions submitted to the Full Bench will accordingly be answered as stated in the judgment of Mr. Justice Crump.

25. The appeal was then heard by Marten C.J. and Baker J.

Amberson Marten, Kt., C.J.

26. Having regard to the decision of the Full Bench this appeal will be dismissed with costs.


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