John Beaumont, C.J.
1. This is an appeal from the First Class Subordinate Judge of Poona raising a question in execution in a case falling within the Dekkhan Agriculturists' Relief Act, 1879.
2. The material facts are that in 1931 there was a mortgage decree against the judgment-debtor, the present appellant, for Rs. 12,000, and a decree was passed on the basis that he was not an agriculturist, and in 1932 his property was sold for appreciably less than the amount due. In 1934 the creditor obtained a personal decree against the judgment-debtor for the balance, and on January 19, 1935, the present darkhast was issued asking for attachment and sale of the immoveable property of the judgment-debtor, and on February 9, 1935, an order was made for the attachment of the immoveable property. The judgment-debtor on that occasion maintained that he was an agriculturist, having become so since the date of the decree; but it was held against him that both on the date of the decree, May 29, 1934, and on the date of the order of attachment, February 9, 1935, the judgment-debtor was not an agriculturist. Section 22 of the Dekkhan Agriculturists' Relief Act provides that immovable property belonging to an agriculturist shall not be attached or sold in execution of any decree, unless the property has been specifically mortgaged. In this case the property sought to be sold had not been specifically mortgaged, and the judgment-debtor now contends that an order for sale of the property cannot be made, because since the date of attachment he has become an agriculturist. A literal reading of Section 22 prohibits property belonging to an agriculturist from being either attached or sold, and suggests that the question of status arises both when the property is attached, and when it is sold. I think that the learned Subordinate Judge was disposed to adopt that construction of the Act, but he held, relying on a decision of this Court in Shamrao v. Malkarjun : (1931)33BOMLR797 , that the judgment-debtor, having raised the question as to his status at the time when the order for attachment was made, was bound by the finding against him throughout the execution proceedings, and that the matter was really res judicata.
3. Now, in Shamrao v. Malkarjun it was held that where property belonging to a non-agriculturist judgment-debtor passed on his death into the hands of his heir who was an agriculturist, the heir was entitled to the benefit of the Dekkhan Agriculturists' Relief Act, 1879. In so deciding, the Court followed an earlier decision of this Court, Maruti v. Martand : (1922)24BOMLR749 , and that view of the law is binding upon us, though the point does not directly arise in the present case. I take it that the expression 'belonging to' in Section 22 of the Dekkhan Agriculturists' Relief Act not being a term of art refers to the beneficial title, and the question which has to be determined is whether at the critical moment the party to whom the property belongs beneficially is an agriculturist. But then the Court in Shamrao's case went on to hold, according to the head-note, that an order passed in the course of an execution proceeding was binding on the parties at subsequent stages of the same proceeding. At first sight that looks as if the decision was in favour of the view taken by the learned Subordinate Judge, but on reference to the rozanama in that case it appears that the order there made was an order for both attachment and sale. So that no question arose in that case of different dates for attachment and sale. There was only one order, both for attachment and sale, and I agree with the view taken by the Court in that case, and also by this Court in Sopana v. Dattatraya : AIR1934Bom383 , that in the case of a sale the crucial date for the application of Section 22 is the date of the order for sale. It cannot have been the intention of the legislature that after an order for sale has been made, the judgment-debtor is still to be able to raise the question of change of status right up to the moment when the sale is confirmed. In my opinion, however, Shamrao's case does not support the view of the learned. Subordinate Judge that the fact that the judgment-debtor was held to be an agriculturist in February, 1935, when the order for attachment was made, prevents him from contending that he is no longer an agriculturist when an order for sale is asked for.
4. Then it is argued that Section 22 of the Dekkhan Agriculturists' Relief Act does not really deal with two dates, but deals with two methods of execution, execution by attachment and sale, and execution by sale without attachment, both modes of execution being allowed under Section 51 of the Civil Procedure Code. It is said that the section should be read as meaning that the immovable property belonging to an agriculturist debtor shall not be attached, or, where there is no attachment, be sold. There is a certain amount to be said in favour of that construction from the point of view of expediency, as tending to reduce the already excessive number of opportunities allowed to an agriculturist debtor to delay his creditor. But the construction contended for by the respondent is not the most literal construction of the section, and a serious objection to adopting such construction is that Section 51 of the Civil Procedure Code was incorporated for the first time in 1908, long after the passing of Section 22 of the Dekkhan Agriculturists' Relief Act, and at the time when Section 22 was passed, the only method of executing a decree against immovable property was by attachment and sale. The construction contended for would not have been open when Section 22 was passed. In my opinion, therefore, we must read Section 22 literally, and hold that where there is not a single order for attachment and sale, but there is an order for attachment alone intended to be followed by an order for sale, it is open to the judgment-debtor to set up his status of an agriculturist both when an order for attachment is sought, and also subsequently on the application for an order for sale.
5. The appeal, therefore, must be allowed. The learned Judge directed the sale of the appellant's property on March 8, 1940. That order will be set aside, if it is proved that the judgment-debtor is an agriculturist, and the matter must go back to the lower Court to consider whether at the time when the Court is asked to make an order for. sale the judgment-debtor is an agriculturist.
6. The appellant to get the costs of the appeal. Costs in the lower Court will be costs in the cause.