1. Three points have been urged in this appeal by Mr. Gumaste for the appellant. The first point is that the trial Court erred in law, in not examining the defendant under Section 12 of the Dekkhan Agriculturists' Relief Act. The defendant is, no doubt, admitted to be an agriculturist, but he gave a purshis, exhibit 131, stating that he had given up all his contentions and the accounts may be taken from 1916 up to the date of suit. The plaintiffs' suit was, no doubt, based on the promissory note passed by the defendant and the latter had urged several grounds with regard to that note. But at a certain stage in the suit he gave up all those grounds, and therefore, as the learned trial Judge remarks, the contentions relating to issues Nos. 2 to 10 having been given up by the defendant by his purshis, he recorded the findings on the other issues. In accordance with the purshis, the Court did appoint a Commissioner to take accounts from 1916. There was no serious objection urged by the defendant against those accounts and the Court accepted the sum and passed a decree. The defendant's grievance now is that under Section 12 of the Dekkhan Agriculturists' Relief Act he ought to have been examined by the Court. That section says that the Court, if the amount of the creditor's claim is disputed, shall examine both the plaintiff and the defendant as witnesses, unless, for reasons to be recorded by it in writing, it deems it unnecessary so to do, and the question is whether on account of the purshis given by the defendant, he must be said to have admitted the creditor's claim. I think both the lower Courts were right in holding that under the purshis the defendant gave up all his contentions with regard to the items, and he merely asked the Court to take accounts from 1916 and that the Court certainly did That being so, it was not obligatory on the trial Court, in my opinion, to examine the defendant. Reliance has been placed on the decision in Patlu v. Naru (1905) 7 Bom. L.R. 688, but the facts of that case are entirely different from the present one. There even the accounts were not taken, no enquiry as contemplated under Section 13 was made and no purshis such as we have here had been given. Here an inquiry has been made and accounts have been taken, and by the purshis the defendant definitely gave up his contentions to the various items. I do not think, therefore, that the decision of the trial Court is vitiated on account of the defendant being not examined.
2. The second point urged is that the promissory note having been passed for Rs. 4,594, no decree could be given to the plaintiffs in excess of that amount under Section 13 of the Dekkhan Agriculturists' Relief Act. The decree actually passed is for Rs. 5,418 as principal and Rs. 2,709 for interest. The complete answer to that contention is given in full bench decision of this Court in the case of Gopaldas v Vithal : (1929)31BOMLR915 F.B., where the two previous decisions in Raghunath v. Ramchandra I.L.R. (1921) 46 Bom. 384 : 23 Bom. L.R. 1098 and Vithaldas Bhagwandas v. Murtaja Hushein I.L.R. (1921) 46 Bom. 764 : 24 Bom. L.R. 267, have been overruled. If accounts are to be opened up between parties one of whom is an agriculturist, then I think it is just and equitable that a decree should be passed on the footing of the account whether that account is in favour of or against the agriculturist, and even if the sum found due on taking the account is in excess of the sum claimed by the plaintiff against the agriculturist, the latter should submit to a decree on the account being so taken.
3. The third point taken is that the decree should be passed in favour of the plaintiff individually and not in favour of the firm. That point, however, has not been taken anywhere, not even in the written statement, and I do not think, therefore, that it is open to the appellant to urge it here for the first time.
4. The decree of the lower appellate Court is, therefore, confirmed and the appeal is dismissed with costs.