1. This execution appeal raises the question of the right of a person who is an agriculturist at the date of the execution but was not an agriculturist at the date of the decree to have his property sold by the Collector rather than by the Court. The decree under execution was a decree for the payment of a mortgage debt by instalments; and it directed that, in the event of the defendant failing to pay any two instalments in time, the plaintiff, if he so wished, should sell the mortgaged property in suit and recover the whole amount then due in one sum. The executing Court has presumed that the defendant is entitled to plead his agricultural status at the time of the execution, and it has held that he has in fact proved it; and on that ground the Court has ordered that the mortgaged property be sold and the sale be held by the Collector. But the point taken by the decree-holder in this appeal, apart from the merits of the decision that the defendant was an agriculturist at the date of the execution (as to which I do not propose to say anything), is that the only provision of law by which property that has to be sold must be sold by the Collector is one of the four Government notifications relating to Poona, Satara, Sholapur and Ahmednagar Districts printed under Rule 95 at p. 87 of volume I of the Civil Manual headed 'Execution by the Collector.' The present execution comes from the Ahmednagar Court and the terms of the notification have to be followed if the notification applies.
2. Section 22 of the Dekkhan Agriculturists' Relief Act prohibits a Court from attaching and selling the immoveable property of an agriculturist unless the property has been specifically mortgaged for the debt to which the decree relates. It is open to an agriculturist to take the benefit of that section even if he was not an agriculturist at the date of the decree; it is enough if he is an agriculturist at the date of the execution: see Vishvanath Vithalsa v. Balaram Anandram (1940) 43 Bom. L.R. 325 which was a case where there was an attachment in the suit which was intended to be followed, and was in fact followed, by an order for sale passed in execution. But the question here is not whether the property is to be sold at all but whether it is to be sold by the Collector rather than by the Court; and the only authority which requires it to be sold by the Collector rather than by the Court is the series of notifications to which I have referred. The material order in those notifications so far as this present execution is concerned is that in the District of Ahmednagar it is only the Collector who may execute 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, which has been specifically mortgaged for the repayment of the debt to which any such decree relates. If the decree does in fact order the sale of the property, then execution must be transferred to the Collector if this notification applies. But two things are clear, (1) that the notification will not apply unless the decree itself orders the sale of the property, and (2) that 'property belonging to a person who is an agriculturist' on the authority of the case cited would mean property belonging to a person who is an agriculturist at the critical date, which is the date of the order for sale.
3. On behalf of the judgment-debtor Mr. Rele argued that it was not so much the decree that ordered sale of the property as the order for sale passed in execution ; but that at once puts him out of Court, because in that case the notification will not apply and there is no other provision which would require the sale to be held by the Collector once it has been ordered by the Court.
4. Mr. Rele attempts to get out of the difficulty by suggesting that on the assumption of the decree ordering sale there is nevertheless a further order for sale passed in execution proceedings on the application of the decree-holder, just as in the case cited there was an attachment in the suit intended to be followed, and actually followed, by an order that the attached property be sold, which last order was passed in execution. The argument in short is that we have two critical dates in this case-the date of the decree giving jurisdiction to the Collector, and the date of the order in execution for sale giving the judgment-debtor the right to plead agricultural status even at this stage. But in our view it is meaningless for there to be two orders for sale; unless some order cancelling the, former order for sale has intervened, the subsequent order for sale can be no more than a confirmation of the previous order,-nothing more in effect than an order directing that the property which was already ordered to be sold should be put up for sale in the ordinary way. The dilemma therefore is that if the decree orders sale, then the order for sale passed in execution is merely an order for confirmation and not such a separate order for sale as would give the judgment-debtor a right to plead agricultural status as at the date of the execution. On the other hand if the decree does not order sale, then the Government Notification directing the sale to be held by the Collector does not apply. The dilemma remains unresolved, and this appeal must be allowed. The sale must be held by the Court. The judgment-debtor will pay the costs of the appeal.