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Mathuradas Tuljaram Vs. Mahadu Maruti Kavde - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 39 of 1928
Judge
Reported inAIR1930Bom238; (1930)32BOMLR320
AppellantMathuradas Tuljaram
RespondentMahadu Maruti Kavde
Excerpt:
.....of his heirs-court has no jurisdiction to direct the collector to take, possession of the property.;section 22, clause (9), of the dekkhun agriculturists' relief act does not apply to the representative in interest or the heirs of the deceased judgment-debtor.;the words 'to the possession of which he is entitled' in that clause refer to a judgment-debtor who is living and entitled to the possession of the property at the date of the passing of the decree or order, and do not cover the case of a deceased judgment-debtor.;hirachand motichand v. hansabai (1922) i.l.r. 47 bom. 527. s.c. bom. l.r. 76, followed. - - these two grounds appear to us to present difficulties in the way of accepting the correctness of the decision of the sind court, and therefore we are not satisfied on..........word 'judgment-debtor.'2. it is argued on behalf of the appellants that sections 60 and 146 of the civil procedure code were not considered in that judgment, and reliance is placed on the decision in chotiram v. lalbux (1918) 15 s. l.r. 47 where it was held that the legal representatives of a judgment-debtor are under section 50, civil procedure code, read with section 74 of act xvii of 1879, liable to the extent of the property of the deceased come to their hands, and section 22 does not debar the court from the appointment of a collector to manage the property in the hands of the legal representatives owing to the death of the judgment-debtor. it is argued on behalf of the respondents that section 74 of the civil procedure code would only apply where it is not inconsistent with the.....
Judgment:

Patkar, J.

1. In this case the decree-holder made an application under Clause (2) of a 22 of the Dekkhan Agriculturists' Relief Act that the Collector should take possession of the property belonging to the deceased judgment-debtor and deal with the same for the benefit of the decree-holder for a period not exceeding seven years. Before the learned Subordinate Judge it was not contended that the income of the property was less than what was necessary for the support of the defendants' family, and therefore, the learned Subordinate Judge passed an order in favour of the decree-holder under Clause (2) of Section 22. On appeal, the learned Assistant Judge, relying on the decision in the case of Hirachand Motichand v. Hansabai I.L.R. (1922) 47 Bom. 527 held that the Court had no jurisdiction under Section 22 (2) of the Dekkhan Agriculturists' Relief Act to direct the Collector to take possession of the immoveable property falling into the hands of the heirs of the judgment-debtor, and following the observation of Macleod C. J. held that it was entirely contrary to all canons of construction to read into the section, 'or his heirs' after the word 'judgment-debtor.'

2. It is argued on behalf of the appellants that Sections 60 and 146 of the Civil Procedure Code were not considered in that judgment, and reliance is placed on the decision in Chotiram v. Lalbux (1918) 15 S. L.R. 47 where it was held that the legal representatives of a judgment-debtor are under Section 50, Civil Procedure Code, read with Section 74 of Act XVII of 1879, liable to the extent of the property of the deceased come to their hands, and Section 22 does not debar the Court from the appointment of a Collector to manage the property in the hands of the legal representatives owing to the death of the judgment-debtor. It is argued on behalf of the respondents that Section 74 of the Civil Procedure Code would only apply where it is not inconsistent with the Dekkhan Agriculturists' Relief Act, that Section 22 of the Dekkhan Agriculturists' Belief Act is inconsistent with Section 55 of the Civil Procedure Code and Section 22 of the Dekkhan Agriculturists' Belief Act is inconsistent with Section 60, Clause (1), of the Civil Procedure Code, that the remedy provided by Clause (2) of Section 22 of the Dekkhan Agriculturists' Relief Act is a departure from the Civil Procedure Code, and therefore, under Section 74 of the Dekkhan Agriculturists' Relief Act, Sections 50 and 146 of the Civil Procedure Code would not apply to the present case, falling under Section 22, Clause (2), of the Dekkhan Agriculturists' Relief Act.

3. It appears that though the specific remedy provided for by Section 22, Clause (2), is not granted under the Civil Procedure Code, a similar provision is enacted in the Civil Procedure Code, Schedule III, Rule 1, Clause (6) and Rule 7, Clause (1), sub-clause (6) (i), under Sections 68 to 72 of the Civil Procedure Code. According to the decision in the case of Maruti v. Martand (1922) 24 Bom. L.R. 719 the immoveable property belonging to an agriculturist is, by virtue of the provisions of Section 22 of the Dekkhan Agriculturists' Belief Act, immune from attachment and sale in execution of a money decree against him, but the immunity ceases as soon as the property passes on his death into the hands of his legal representatives who are not themselves agriculturists and the immunity attaches to the estate in the hands of his legal representatives if they are agriculturists. Reliance is placed on behalf of the appellants on the following remarks of Shah J. at page 752 :-

When the original defendant, who was undoubtedly an agriculturist, died, the property deceased to belong to him ; and though for execution purposes it is treated as the estate of the deceased in the hands of his legal representative it must be taken to belong at the date of the attachment to the legal representative.

4. 'The property of the judgment-debtor,' for purposes of execution within the meaning of Section 50 of the Civil Procedure Code, would represent the estate of the deceased judgment-debtor in the hands of the legal representative. The decision in Chotiram v. Lalbux is not binding on us. The point arising for decision in this case was raised in the case of Anant v. Tukaram I.L.R.(1922) 47 Bom. 527 but was not decided. The decision in Hirachand Motichand v. Hansabai would be binding on this Court unless it is shown to be erroneous and the question is referred to the Full Bench. There are, however, two grounds on which we think that the decision in Hirachand Motichand v. Hansabai does not appear, on the arguments before us, to be erroneous. First, in Section 22, clause 2, reference is made to Section 29, and in the proviso to Section 29 specific reference is made to the representative in interest whereas any reference to the representative in interest or heirs is omitted in the second clause of Section 22. Further, the words ' to the possession of which he is entitled' would not cover the case of a deceased judgment-debtor but would appropriately refer to a judgment-debtor who is living and entitled to the possession of the property at the date of the passing of the decree or order under Clause (2) of Section 22 of the Dekkhan Agriculturists' Belief Act. These two grounds appear to us to present difficulties in the way of accepting the correctness of the decision of the Sind Court, and therefore we are not satisfied on the arguments before us that the decision in Hirachand Motichand v. Hansabai is erroneous. The drafting of Clause (2) of Section 22 of Dekkhan Agriculturists' Relief Act seems to be faulty and the remedy lies with the legislature. The decision is somewhat anomalous but does not appear to us to be incorrect having regard to the wording of the section. We would, therefore, following that decision, confirm the decree of the lower appellate Court and dismiss this appeal with costs.

Baker, J.

5. I agree.


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