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Shidraj Bhojraj Desai Vs. Renaki Konda Mahar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 650 of 1924
Judge
Reported in(1925)27BOMLR1490
AppellantShidraj Bhojraj Desai
RespondentRenaki Konda Mahar
DispositionAppeal dismissed
Excerpt:
dekkham agriculturists' relief act (xvii of 1879) - judgment-debtor--legal representative of judgment-debtor--representative can prove his status of agriculturist at the date of decree.;where a person against whom a decree is passed dies before execution proceedings are completed and his legal representative is brought on the record, it is open to such legal representative to prove that he was an agriculturist at the date of the decree, so as to enable him to obtain the relief provided by the dekkhan agriculturists' belief act 1870.;rudrappa v. chanbasapa (1923) 26 bom. l.r. 153 extended. - .....to be declared as an agriculturist bo that she could obtain the privileges of that status in the execution proceedings. the trial court ordered the sale of the property and attachment to proceed.2. in appeal the acting district judge set aside that order and directed the subordinate judge to find on the issue as to whether the applicant was or was not an agriculturist, and if it was found that she was an agriculturist to grant the appropriate relief.3. if thalya had survived, in the execution proceedings he would have been allowed to prove his status as an agriculturist under the decision in rudrappa v. chanbasappa (1923) 26 bom. l.r. 153 . there is no reason, therefore, why the fact that he died before the execution proceedings were completed should prevent his legal representatives.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case a decree was passed in suit No. 4 of 1917 in the Court of the Second Class Subordinate Judge at Athni against, amongst other persons, one Thalya Mahar. He died soon after the decree was passed on September 27, 1917, and his widow was placed on the record. On June 1, 1918, a darkhast was filed against her. Her husband was not described in the proceeding which was exparte against him as an agriculturist and the widow died before the darkhast came on for decision. The present applicant is the daughter of Thalya and she applied to be declared as an agriculturist BO that she could obtain the privileges of that status in the execution proceedings. The trial Court ordered the sale of the property and attachment to proceed.

2. In appeal the acting District Judge set aside that order and directed the Subordinate Judge to find on the issue as to whether the applicant was or was not an agriculturist, and if it was found that she was an agriculturist to grant the appropriate relief.

3. If Thalya had survived, in the execution proceedings he would have been allowed to prove his status as an agriculturist under the decision in Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153 . There is no reason, therefore, why the fact that he died before the execution proceedings were completed should prevent his legal representatives from proving that they were agriculturists so as to enable them to obtain the relief provided by the Act. It would have to be proved that the applicant was an agriculturist at the date of the decree, and an enquiry as regards that fact has been directed by the District Judge. We think that order was right and the appeal must be dismissed with casts.


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