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Sitaram Abaji Gujar Vs. Dagadu Asaram Marwadi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 122 of 1941
Judge
Reported inAIR1943Bom127; (1943)45BOMLR248
AppellantSitaram Abaji Gujar
RespondentDagadu Asaram Marwadi
DispositionAppeal dismissed
Excerpt:
.....against agriculturist-sale by agriculturist of property to third partydarkhastt in execution of decree-execution sale ordered by court-whether proceedings in execution void as not conducted by collector-applicability of circular no. 95.;the notification issued under section 68 of the civil procedure code, 1908, does not apply to a mortgage decree passed against an agriculturist when the property; has devolved by purchase on a non-agriculturist at the time when it is to be sold in execution of the decree.;maruti v. martand (1922) 24 bom. l.r. 749, applied.;appa sakharam v. jagannath sambhuappa (1939) 42 bom. l.r. 457, distinguished.;mathuradas v. mahadu (1929) 32 bom. l.r. 320, referred to. - - martand is still good' law, and if the analogy of section 22 holds good, the present case..........mortgaged by the two brothers to the father of defendant no. 1. then in 1923 after pandu's death maruti sold part of it to one shriram, who in turn sold it to defendant no. 2, ibrahim, in july, 1927. thereafter defendant no. l's father released his mortgage rights over pot hissa no. 1, and obtained a decree against maruti and two subsequent mortgagees in respect of pot hissa no. 2 on august 9, 1922. it was a compromise decree) under an agreement between maruti and defendant no. l's father by which the latter admitted for the purpose' of the suit that maruti was an agriculturist. the decree was made binding not only against maruti but against the two mortgagees. thereafter maruti sold a part of the property to the present appellant in march, 1929. shriram had in his sale-deed undertaken.....
Judgment:

Divatia, J.

1. This is an appeal by the plaintiff in a suit to obtain a declaration that the sale of certain property in a darkhast at the instance of defendant No. 1 was illegal and that the auction-purchasers had no right to take its possession from the plaintiff.

2. The property consisting of survey No. 398 originally belonged to one Maruti and his brother Pandu. In May, 1912, it was mortgaged by the two brothers to the father of defendant No. 1. Then in 1923 after Pandu's death Maruti sold part of it to one Shriram, who in turn sold it to defendant No. 2, Ibrahim, in July, 1927. Thereafter defendant No. l's father released his mortgage rights over pot hissa No. 1, and obtained a decree against Maruti and two subsequent mortgagees in respect of pot hissa No. 2 on August 9, 1922. It was a compromise decree) under an agreement between Maruti and defendant No. l's father by which the latter admitted for the purpose' of the suit that Maruti was an agriculturist. The decree was made binding not only against Maruti but against the two mortgagees. Thereafter Maruti sold a part of the property to the present appellant in March, 1929. Shriram had in his sale-deed undertaken to pay the decretal amount to defendant No. l's father by instalments and defendant No. 2, the purchaser from Shriram, had also undertaken the same liability. The instalments were paid for some years but thereafter there was default and nothing was paid by defendant No. 2 or Maruti. In March, 1934, defendant No. 1, after his father's death, filed a darkhast for recovering his remaining dues against Maruti and his two mortgagees by sale of the mortgaged property. The present plaintiff was not a party to the suit. The property was sold and was purchased by defendant No. 1, the darkhastdar, himself for Rs. 555. The plaintiff then brought the present suit for a declaration that the sale was not binding against him because he had purchased the property from Maruti five years before the darkhast was filed, that he was fraudulently not made a party to it, that it was sold for a grossly inadequate price in the auction, and that in any case the darkhast ought to have been sent to the Collector for execution under Section 68 of the Civil Procedure Code, 1908, because the decree was passed against an agriculturist. These contentions have been repelled by the lower Courts and it is held that there was no fraud on the part of the decree-holder, that the proceedings in the darkhast were not void on the ground that they were conducted by the Court and not by the Collector, and that defendant No. 1 was not estopped from denying that the plaintiff's land . ?was not subject to the defendant's mortgage decree. The suit: was therefore dismissed.

3. The main contention in this appeal is that the decree could not have been executed by the Court but should have been sent to the Collector for execution and that therefore the sale proceedings which took place in civil Court were void and should be set aside. Now, under Section 68 of the Civil Procedure Code the Government may declare that in any local area the execution of decrees in which the Court has ordered any immoveable property to be sold or the execution of any particular kind of such decrees shall be transferred to the Collector. Reliance is placed on Circular No. 95 in Chapter II of the Civil Manual in which it is stated that under the Government notifications, in the District of Ahmednagar, from which this case comes, certain decrees are to be sent to the Collector, They are described as decrees ordering the sale of any immoveable property belonging to a person who is an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, 1879, which has been specifically mortgaged for the repayment of the debt to which any such decree relates. It is urged that this decree was passed against a person who was an agriculturist and that therefore it ought to have been sent to the Collector. But the difficulty in the plaintiff's way is that the property had ceased to belong to an agriculturist at the date when it was ordered to be sold by the Court in 1934. At that time Maruti's interest in the property had been conveyed to the present plaintiff who is not an agriculturist.

The question, therefore, is whether this notification would apply to a decree passed against an agriculturist even though the property has devolved on a non-agriculturist at the time when it is to be sold in execution, or, whether it would apply to a decree in which the judgment-debtor or his legal representative is an agriculturist at the time of execution. The notification applies to a sale of immoveable property belonging to an agriculturist, and for the purpose of the definition of agriculturist we have to go to Section 2 of the .Dekkhan Agriculturists' Relief Act. In Section 2, Rule 1, the term 'agriculturist' is defined, and there is no doubt that although Maruti was to be regarded as an agriculturist, the plaintiff is not an agriculturist falling within that definition. But it is contended that the present case would fall under the second rule which says that in Chapters) II, III, IV and VI and in Section 69 of the Dekkhan Agriculturists' Relief Act the term 'agriculturist', when used with reference to any suit or proceeding, shall include a person who, when any part of the liability which formed the subject of that suit or proceeding was incurred, was an agriculturist within the meaning of that word as then defined by law. It is contended that under this part of the definition the term 'agriculturist' would include Maruti, who was an agriculturist when the liability was incurred, and that therefore the decree must have been sent to the Collector. In my opinion, this argument is incorrect. All that the notification requires is that the property belongs to a person who is an agriculturist under the Dekkhan Agriculturists' Relief Act. Rule 2 extends the operation of the definition of agriculturist in certain cases only which are provided for in the specified parts of the Dekkhan Agriculturists' Relief Act. But even there it has been held in Maruti v. Martand : (1922)24BOMLR749 , in the case of Section 22 of the Dekkhan Agriculturists' Relief Act which occurs in Chapter III, that although immoveable property belonging to an agriculturist is, by virtue of the provisions of that section, immune from attachment and sale in execution of a money decree against him, the immunity ceases as soon as the property passes on his death into the hands of his legal representatives who are not themselves agriculturists. So that in such a case, even if the decree is passed against an agriculturist and his interest has devolved by inheritance or otherwise on a person who is a non-agriculturist, the provisions of Section 22 cannot be availed of by the non-agriculturist. The same principle is, in my opinion, applicable to the notifications issued under Section 68 of the Civil Procedure Code. It is contended that the present case of a purchase can be distinguished from a case of succession, because in the latter case the heir is still the judgment-debtor while the purchaser is an assignee from the judgment-debtor. But that does not affect the principle. The reason of the rule is that a benefit, which is intended for an agriculturist, cannot be availed of when the property has passed into the hands of a non-agriculturist.

4. The appellant's advocate has referred to a recent decision of our Court in Appa Sakharam v. Jagannath Sambhuappa, in which it is held that the immunity granted by Section 22 to immoveable property belonging to an agriculturist from attachment or sale in execution of a decree against him extends to an agriculturist who is such as is defined by) Section 2 of the Act at the date of the decree, though he has ceased to be an agriculturist at the date of the attachment or sale. I am not concerned here with the same judgment-debtor who is an agriculturist at the time of the decree but has ceased to be such when the property is to be sold. The decision in Maruti v. Martand is still good' law, and if the analogy of Section 22 holds good, the present case falls within the principle of that decision. There is also another decision in Mathuradas v. Mahadu in which it is held that Clause (2) of Section 22 does not apply to the representative in interest or the heirs of the deceased judgment-debtor. I think therefore that the change in the status of the judgment-debtor himself stands on a different footing from the change of ownership of the property by which it comes to be acquired by a person of different status.

5. It is further contended that the execution proceedings should be set aside also on the ground of fraud. Both the lower Courts have held that no fraud' on the part of the decree-holder has been proved and I entirely agree with that conclusion. There is also no case of any estoppel operating against defendant No. 1.

6. As a result, therefore, the decree of the lower appellate Court is correct, and the appeal is dismissed with costs.


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