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Mahadev Raghunath Godbole Vs. Rama Tukaram Devkote - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 50 of 1915
Judge
Reported inAIR1915Bom208; (1915)17BOMLR962
AppellantMahadev Raghunath Godbole
RespondentRama Tukaram Devkote
Excerpt:
.....are both satisfied, that is to say, (a) when the decree or order in question relates to the repayment of a debt, and (b) when the agriculturist's property has been specifically mortgaged for the repayment of that debt. the limiting words, referring to a debt, occur only in the proviso and cannot be imported into the main rule so as to restrict its express generality. - - we cannot, therefore, but think that the true construction of the section is, first, a general provision that immoveable property belonging to an agriculturist shall always be immune from sale, and, secondly, a proviso directing that this immunity is subject to exception where the two following conditions are both satisfied, that is to say, (a) where the decree or order in question relates to the repayment of a..........that the plaintiff was a purchaser from a mere mortgagee, and the court consequently gave the defendants a decree for redemption. the sum to be repaid was rs. 960, of which rs. 550 were to be paid on 25th march 1909. the balance was payable by yearly instalments of rs. 100. the defendants paid in all a sum of rs. 660. in the meanwhile, however, they had lodged an appeal, and the lower appellate court reversed and remanded the original court's decree. therefore on the 3rd august 1912 the defendants applied under section 144 of the civil procedure code asking for restitution in respect of the payments which they had made, and for interest at twelve per cent. there was an added prayer that in the event of the plaintiff failing to pay, his house should be attached and sold.2. the lower.....
Judgment:

Batchelor, J.

1. The appellant before us was the original plaintiff who in 1908 brought a suit in ejectment against the defendants. It was found, however, that the plaintiff was a purchaser from a mere mortgagee, and the Court consequently gave the defendants a decree for redemption. The sum to be repaid was Rs. 960, of which Rs. 550 were to be paid on 25th March 1909. The balance was payable by yearly instalments of Rs. 100. The defendants paid in all a sum of Rs. 660. In the meanwhile, however, they had lodged an appeal, and the lower appellate Court reversed and remanded the original Court's decree. Therefore on the 3rd August 1912 the defendants applied under Section 144 of the Civil Procedure Code asking for restitution in respect of the payments which they had made, and for interest at twelve per cent. There was an added prayer that in the event of the plaintiff failing to pay, his house should be attached and sold.

2. The lower Courts have ordered the sale of the plaintiff's house.

3. The plaintiff complains that since he is an agriculturist, his house is immune from sale under Section 22 of the Dekkhan Agriculturists' Relief Act. If that contention is justified, then it would follow that the plaintiff must have an opportunity of proving that he is an agriculturist, such opportunity not yet having been afforded to him.

4. The question, therefore, is whether assuming that the plaintiff is an agriculturist, his house is not liable to sale under Section 22 of the Dekkhan Agriculturists' Relief Act. That section, in so far as it is now material, runs as follows :-' Immoveable property belonging to an agriculturist shall not be attached or sold in execution of any decree or order unless it has been specifically mortgaged for the repayment of the debt to which such decree or order relates,' The learned District Judge reads this section as presupposing the existence of a contractual debt in all cases, and he, therefore, decides that, since no such debt was in existence here, the section is inapplicable. The phraseology of the section does perhaps lend some colour to the District Judge's view, but it appears to us that the true reading of the section is that for which the plaintiff contends. The learned Judge's construction is only to be arrived at if we read into the main general clause the restrictive words implying the existence of a debt, and those restrictive words do not occur in the main general clause, but occur only in the limiting proviso. We cannot, therefore, but think that the true construction of the section is, first, a general provision that immoveable property belonging to an agriculturist shall always be immune from sale, and, secondly, a proviso directing that this immunity is subject to exception where the two following conditions are both satisfied, that is to say, (a) where the decree or order in question relates to the repayment of a debt, and (b) where the agriculturist's property has been specifically mortgaged for the repayment of that debt. The provision would have been clearer if it had been expressed at greater length, but it seems that the draftsman preferred terseness and concision. Nevertheless the limiting words referring to a debt occur only in the proviso and cannot, we think, be imported into the main rule so as to restrict its express generality. This view seems to derive support both from the general character of the Dakkhan Agriculturists' Relief Act itself and from the wideness of the preceding Sections 20 and 21.

5. We, therefore, think that the lower Court's decree must be reversed and the case must be remanded in order that the plaintiff may have an opportunity of proving that he is an agriculturist within the statute.

6. Costs to be costs in the Darkhast.


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