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Basappa Malesappa Rajure Vs. Sambappa Shivlingappa Ashtye - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 178 of 1939
Judge
Reported in(1942)44BOMLR25
AppellantBasappa Malesappa Rajure
RespondentSambappa Shivlingappa Ashtye
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 71-civil procedure code (act v of 1908), order xxi, rule 2-decree--adjustment--adjustment not certified to court section 71 applies to proceedings under act.;section 71 of the dekkhan agriculturists' relief act, 1879, enables the adjustment of a decree to be proved in a manner in which it could not be proved apart from the section, but only in a proceeding under the act. it applies only to a decree passed in a proceeding under the act, and it is not open to a defendant to rely upon an uncertified adjustment of a decree not passed in a proceeding under the act, by showing that he has become an agriculturist since the date of the decree. - .....that order xxi, rule 2, does not apply, and he seeks to do that by reliance on section 71 of the dekkhan agriculturists' relief act, which provides that the last clause of section 258 of the code of civil procedure, (which corresponds to order xxi, rule 2(3)) shall not apply to payments out of court made in any proceeding under the act, in any case where an acknowledgment by the judgment-creditor for the same is produced, or when the payment is either admitted by him or proved. the question is whether this application of the appellant in the darkhast was made in a proceeding under the act. now, the decree is not on the face of it a decree against an agriculturist. the defendant did not prove at the trial his status of an agriculturist, but his contention is that since the date of the.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from an order made in execution by the First Class Subordinate Judge of Sholapur.

2. On March 9, 1937, a decree was passed in favour of the present respondent on two mortgage bonds, the amount being payable by installments with a default clause. Default was made, and the decree-holder applied to execute the decree. On that application the judgment-debtor sought to rely on certain payments and adjustments of the decree made out of Court, and not certified under Order XXI, Rule 2(2), Civil Procedure Code, 1908.

3. Order XXI, Rule 2, Civil Procedure Code, provides that where any money payable under a decree' of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part, the adjustment is to be certified to the Court; and then Sub-rule (3) provides that a payment or adjustment, which has not been certified, shall not be recognised by any Court executing the decree. Therefore, these adjustments cannot be recognised by the Court, unless the judgment-debtor can show that Order XXI, Rule 2, does not apply, and he seeks to do that by reliance on Section 71 of the Dekkhan Agriculturists' Relief Act, which provides that the last clause of Section 258 of the Code of Civil Procedure, (which corresponds to Order XXI, Rule 2(3)) shall not apply to payments out of Court made in any proceeding under the Act, in any case where an acknowledgment by the judgment-creditor for the same is produced, or when the payment is either admitted by him or proved. The question is whether this application of the appellant in the darkhast was made in a proceeding under the Act. Now, the decree is not on the face of it a decree against an agriculturist. The defendant did not prove at the trial his status of an agriculturist, but his contention is that since the date of the decree he has become an agriculturist, and therefore the suit is now a proceeding under the Dekkhan Agriculturists' Relief Act, to which Section 71 applies. The learned Judge held that as the defendant was not an agriculturist at the time of the decree, Section 71 did not apply, and, in my opinion, that is the right view.

4. Section 71 of the Dekkhan Agriculturists' Relief Act enables an adjustment of a decree to be proved in a manner in which it could not be proved: apart from that section, but only in a proceeding under the Act. In my view the section applies only to a decree passed in a proceeding under the Act, and it is not open to a defendant to rely upon an uncertified adjustment of a decree not passed in a proceeding under the Act, by showing that he has become an agriculturist, since the date of the decree.

5. I think, therefore, the judgment of the learned Judge was right, and the appeal must be dismissed with costs.


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