M.C. Chagla, Ag. C.J.
1. This appeal arises in execution proceedings. The appellant obtained a preliminary mortgage decree on February 27, 1943, and he obtained a final decree on June 21, 1944. On December 6, 1944, he presented a darkhast for execution of his decree. Notice was issued to the judgment-debtor under Order XXI, Rule 66, on January 12, 1945. The judgment-debtor failed to appear in answer to the notice and a proclamation was ordered to issue on April 6, 1945, and the sale was fixed on December 17, 1945. On that date the judgment-debtor appeared and applied to the Court that being an agriculturist he should be allowed to satisfy the decree by paying instalments. The executing Court took the view that it was not open to the judgment-debtor to raise a contention about his status at that stage of the proceedings and he dismissed the application of the judgment-debtor. In appeal the learned District Judge took the contrary view. The learned District Judge has relied on two decisions of this Court, One is Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153. In that case the defendant was not described as an agriculturist in the decree and the learned District Judge took the view that it was not open to the executing Court to investigate into the status of the judgment-debtor when the decree did not describe him as an agriculturist. Sir Norman Macleod C.J. and Mr. Justice Crump differed from that view and came to the conclusion that it was open to a judgment-debtor to establish that he was an agriculturist at the date o the passing of the decree in execution proceedings, although the decree did no' describe him as such. The principle of this case was extended in Narayan v. Dhondo (1925) 28 Bom. L.R. 305. In that case in earlier execution proceedings the judgment-debtor had not taken up the contention that he was an agriculturist and Sir Norman Macleod C.J. and Mr. Justice Coyajee held that notwithstanding his failure to put forward that contention in earlier proceedings it was open to him to raise t plea as to his status in a subsequent execution proceeding.
2. Then we come to the decision of Mr. Justice Lokur in Mahadeo Sunder v. Khanderao Sitaram : AIR1939Bom526 . In that case the facts were very similar to the facts I have before me. There too the judgment-debtor failed to appear on receiving a notice issued to him under Order XXI, Rule 66, and after the terms of the proclamation for sale were settled by the Court he made an application asking for a fresh panchnama and a fresh valuation of the property to be sold. That application was grantee and a fresh proclamation was issued and then he made an application stating that he was an agriculturist and as king for the proceedings to be transferred to the Collector, and Mr. Justice Lokur held that the judgment-debtor had accepted the order passed by the executing Court with regard to the sale of the property and it was not open to him subsequently to put forward the contention that he was an agriculturist. It seems to me that the principle of that decision also applies to the case here. The principle is really based on constructive res judicata. It was open to the judgment-debtor when the notice under Order XXI, Rule 66, was issued to him to plead his status. He failed to do so and allowed the Court to make the order with regard to the issue of the proclamation and fixing the date for the sale. In doing so, he brought into operation the principle of constructive res judicata and, therefore, when he applied after the date of the sale was fixed that his status should be investigated, that application to my mind was barred.
3. The decision in Narayan v. Dhondo is entirely different. When you have several darkhasts presented and there are several execution proceedings, it may be that a judgment-debtor may not contest the earlier ones, but that would not deprive him of the right to avail himself of the benefit given to him under the Dekkhan Agriculturists' Relief Act in a subsequent execution proceeding. But when we are dealing with the same execution proceedings after a judgment-debtor, who has had the opportunity of putting forward the contention that he was an agriculturist at an earlier stage of the proceedings, fails to do so and stands by, it is not open to him at a later stage to raise that contention and practically compel the Court to scrap the proceedings already taken and nullify orders already passed. In my opinion, therefore, the lower appellate Court was wrong in coming to the conclusion that it did.
4. The appeal will, therefore, be allowed and the order of the lower appellate Court set aside and the order made by the executing Court restored. No order as to costs this appeal.