1. The short point in this appeal is whether the defendant in a suit on a mortgage, who was not an agriculturist at the date of the preliminary decree, but who acquires agricultural status before the date of the final decree, is entitled to plead his status for the purpose of claiming instalments under Section 15B of the Dekkhan Agriculturists' Relief Act.
2. The facts so far as they are necessary may be stated very briefly. The mortgage was in July, 1926, for a sum of Rs. 1,10,000. Interest was twelve per cent. On February 4, 1932, the mortgagee filed a suit claiming Rs. 1,42,000. This was after allowing for the payment of Rs. 48,000. I may mention that since that date no payment whatever has been made. The defendants, the mortgagors, claimed to be agriculturists but it was held after framing an issue and taking evidence that they were not. The preliminary decree was passed on April 10, 1933. The defendants appealed mainly on the point of their status as agriculturists. The High Court dismissed the appeal on November 3, 1937. Cross-objections by the plaintiff in respect of the amount of interest awarded were allowed, so that the preliminary decree had to be modified in accordance with the High Court decree. On June 6, 1938, the plaintiff applied for redrafting the preliminary decree, and this was done on September 1, 1938. On October 21, 1938, the plaintiff applied for making the decree final. The defendants again raised the contention that they were agriculturists. The trial Court held that the plea was not admissible in view of the fact that they had been held to be non-agriculturists in the course of. the suit. The defendants have appealed.
3. The question for determination depends mainly on the construction of Section 15B of the Dekkhan Agriculturists' Relief Act, the relevant portion of which, Clause (1), is in these terms:-
The Court may in its discretion, in passing a decree for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (z), or in the course of any proceedings under a decree for redemption, foreclosure or sale passed in any such suit, whether before or after this Act comes into force, direct that any amount payable by the mortgagor under that decree shall be payable in such installments, on such dates and on such terms as to the payment of interest, and, where the mortgagee is in possession, as to the appropriation of the profits and accounting therefore, as it thinks fit.
4. According to the argument for the appellants this is a suit of the description mentioned in Section 3, Clause (y), that is to say a suit for sale of the mortgaged property when the defendant is an agriculturist. It is conceded and it is clear from the language of the clause in question that if it is a suit of that description, the Court has a discretion at the time of making a final decree for sale to grant instalments.
5. It is contended on behalf of the respondent that it is not such a suit because the defendants were held not to be agriculturists at the tirne of the preliminary decree. But, in my view, in order that a; suit may be one against an agriculturist it is not necessary that he should be one when the suit is instituted. It is sufficient if he is an agriculturist at any time during the pendency of the suit when the question of status falls to be determined. It will not often happen that there will be sufficient time for a change of status during the pendency of the same suit, but there may be a long interval between the preliminary and final decrees, as there was in the present case, and if so, there seems to be no reason prima facie why a party should not be a non-agriculturist at the time of drawing up the preliminary decree, with the result that he cannot claim the special accounting procedure provided by the Dekkhan Agriculturists' Relief Act, and an agriculturist at the time of the final decree so as to be entitled at that stage to ask for instalments. The suit is still going on at that time, and if the defendant's status has really changed, it seems to me that it is at that time a suit coming within the scope of Section 3, Clause (y), of the Act, and Section 15B will apply to it.
6. In my opinion that is a reasonable view to take on the construction of the Section apart from authority. It is also in accordance with the principle which was laid down by this Court as long ago as Padgaya Somshetti v. Baji Babaji I.L.R. (1887) 11 Bom. 469. It was held in that case by West and Birdwood JJ. that though a change in the law does: not generally affect any proceeding begun when it comes into force, a change of status or legal capacity generally operates at once to extinguish, diminish, or vary the extent to which a party may claim the aid or protection of a Court. That case was the converse of the present. A party who was an agriculturist under the definition in force at the time when he instituted his suit ceased to be an agriculturist before the suit was decided. The Court held that as he was not an agriculturist within the meaning of the Act at the time of adjudication, he had no right to the special benefits conferred by the Act. In the course of the judgment Mr. Justice West said (p. 472): '...as a right may be lost, so it may be gained pendente lite by the acquisition of a particular status with reference to the object of the suit, ...' This principle is well settled. In Savalpuri v. Bala valad Yadaoshet I.L.R. (1912) 36 Bom. 543 the plaintiffs who brought the suit were not agriculturists at the date when the suit was filed. By the purchase of lands they became agriculturists while the suit was proceeding, and it was held that that entitled them to rely on the provisions of the Dekkhan Agriculturists' Relief Act. Mr. Justice Chandavarkar accepted the principle laid down by this Court in three previous cases, one of which was Padgaya v. Baji.
7. Mr. Manerikar for the respondent drew our attention to some observations of Mr. Justice Crump and Mr. Justice Patkar in Maneklal Girdhmlal v. Mahipatram Mansukhram I.L.R. (1927) Bom. 454 The question for decision in that case related to Section 21 of the Dekkhan Agriculturists' Relief Act, which is a point entirely distinct from the one with which we are concerned. But in the course of his judgment Mr. Justice Crump referred to the decisions on Section 15B. He said (p. 467):-
That Section is only applicable in the case of ' a decree for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (2).' A reference to these clauses shows that the party who, desires to take the benefit of Section 15B must be an agriculturist at the date of the suit. That is the ratio- decidendi in Devu Jetiram v. Revappa Satappa' I.L.R. (1922) 46 Bom. 964
8. I shall be referring to that case in a moment and hope to be able to show that the Court in that case was only concerned with the question of status at the date of the decree. Mr. Justice Patkar in his judgment said (p. 470):-
Under Section 15B the decree must be for redemption, foreclosure or sale in any suit of the descriptions mentioned in Section 3, Clause (y) or Clause (2). It was therefore held in the case of Devu Jetiram v. Revappa Satappa that the description 91 the suit in Section 3 was not confined to the relief claimed in the suit, but also included the status of the parties. It was therefore held in that case that the person claiming the benefit of Section 15B and making an application for instalments must be an agriculturist at the date of the suit and the decree.
9. With all respect, however, I am unable to agree that Devu v. Revappa justifies any inference that the party must be an agriculturist at the date of the suit, and I note that Mr. Justice Patkar in the next sentence but one goes on to say:- ' the material date, for the determination of the status of the alleged agriculturist under Section 15 B was held to be the date of the decree, fol- lowing the decision of Devu v. Revappa.' The question whether it is necessary that a party should have the status of agriculturist at the date of the institution of the suit was not before the Court in this full bench case, and the observations of the learned Judges in that connection are obiter. No question arose for consideration in that case as to the acquisition of a different status between the preliminary and final decrees. Moreover, I find it impossible to reconcile the observations of the learned Judges with the principle laid down in Padgaya v. Baji. If you accept the view that for a suit to come under Section 3, Clause (y), or Section 3, Clause (2), the party must be an agriculturist at the commencement of the suit, it would clearly be impossible to take account of a change of status, no matter at what time it occurred thereafter, and that would be contrary to the principle, which, as I say, appears to be well recognised.
10. In order to meet this difficulty Mr. Manerikar attempted to argue that the suit must be treated as having come to an end with the preliminary decree for all practical purposes, including, according to him, the question whether instalments should be granted. The learned advocate's view is that after the preliminary decree it is no longer to be regarded as a suit. The suit has merged in the preliminary decree and nothing remains but an application to make the decree final under Order XXXIV, Rule 5. I find myself quite unable to accept this reasoning. In my opinion it cannot be seriously contended that the preliminary decree puts an end to the suit or that there is no suit pending at the time of the final decree. Although it is quite correct to say that in the ordinary way when a preliminary decree has been passed under Order XXXIV, Rule 4, nothing remains but to make it final under Rule 5 of that Order, that is on the assumption that the provisions of the Dekkhan Agriculturists' Relief Act have not in the meantime become applicable to the case.
11. The learned trial Judge holds that Section 15 B cannot be applied on the strength of three cases to which he has referred, Devu Jetiram v. Revappa Satappa I.L.R. (1921) 46 Bom. 964 Mulji v. Goverdhandas : AIR1923Bom36 ; and Bal v. Maneklal (1931) 34 Bom. L.R. 55. Devu v. Revappa was a case in which there was apparently only one decree. It is described in the report of the case as a redemption decree. But it was a decree in a suit by the mortgagee directing the mortgagor-defendant to pay a certain sum and the decree was sought to be executed by sale of the mortgaged property. It was admitted that at the date of the decree the defendant was not an agriculturist. In the execution proceedings ha claimed to have become an agriculturist since the decree and therefore to be entitled to instalments under Section 15 B. The Court negatived this claim on the ground (if I understand the-judgment rightly) that Section 15 B requires that the defendant should be an agriculturist at the date of the decree which he admittedly was not. Macleod C.J. in the course of his judgment said (p. 966):-
It has been argued that Section 20 of the Dekkhan Agriculturists' Relief Act expressly refers to a decree: passed against an agriculturist, whether before or after' the Act came into force, while Section 15 B only refers to decrees for redemption, foreclosure or sale in suits of the descriptions mentioned in Section 3, Clause (y) or Clause (z), and consequently the fact that a defendant, or any of the defendants, who was not an agriculturist at the time the decree was passed, but became one thereafter, does not prevent his being a party to a suit of that description. But we think that considering the nature of the Act, the description of ' suit' in Section 3 is not confined to the relief claimed in the suit, but also includes the status of the parties. Otherwise the result would be that in all suits for redemption, foreclosure or sale, if subsequently the defendant brought himself within the definition of an agriculturist, he would be entitled to the benefit of Section 15 B, and we do not think that was the intention of the Legislature, or that is what the law enacts.
Having regard to the admitted facts of that case I think that when the learned Chief Justice used the word ' subsequently ' he meant ' subsequent to the decree ' and not ' subsequent to the institution of the suit'. In any case the contrary view would be opposed to the principle that agricultural status may be acquired during the pendency of the suit. On this view of Devu v. Revappa,. which I think is clearly the correct one, that case has nothing whatever to do with the present case where the defendants contend that they were agriculturists at the date of the decree, that is to say at the date of the: final decree. For the purposes of this appeal indeed it has to be assumed that at that date they were agriculturists.
12. Mulji v. Goverdhandas has also no bearing on the question before us. The facts there were these. There was an ex parte decree on the original: side of the High Court. The defendant was described in the plaint as a merchant. In execution proceedings he applied under Section 20 of the Dekkhan Agriculturists' Relief Act for instalments contending that he was an agriculturist. The Court held that the point whether the defendant was or was not an agriculturist was involved in the suit as in virtue of Section 11 and Section 3, Clause (w;), of the Dekkhan Agriculturists' Relief Act, the High Court would not have-jurisdiction to entertain the suit if the defendant was an agriculturist, and it must, therefore, be taken to have been decided that the defendant was not an agriculturist at the date of the decree. It was held further that as the defendant was not an agriculturist at the date of the decree he could not in execution proceedings raise the question that he was an agriculturist at the date of the decree. The case may be compared with Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153 Narayan v. Dhondo (1925) 28 Bom. L.R. 305 Ambanna v. Kallappa (1925) 28 Bom L.R. 567 and Maneklal Girdharlal v. Mahipatram Mansukhram I.L.R. (1927) 51 Bom. 454 where it has been held that when there is no question of jurisdiction to entertain the suit a decree passed ex parte does not conclude the question of status, and therefore it is open to a defendant in exeeution to plead and prove that he was an agriculturist at the date of the decree.
13. In the third case referred to by the trial Judge, Bal v. Maneklal (1931) 34 Bom. L.R. 55 the Court was mainly concerned with the question whether the debts incurred by the principal defendant No. 1 were debts antecedent to the mortgage in suit and whether they were ' avyavaharika' so as to bind his minor sons defendants Nos. 3 and 4. The question of the application of the Dekkhan Agriculturists' Relief Act only arose incidentally. A preliminary decree had been passed on September 30, 1927, and a final decree on September 22, 1928. There were appeals by the minor defendants, one of whom defendant No. 4 died pending the appeals. Defendant No. 1 however filed cross-objections. So far as the question of change of status between the preliminary and final decrees was discussed at all it was only in the case of defendant No. 1 whose right to file cross-objections on the point was doubtful. Mr. Justice Patkar said (p. 72):-. defendant No. 1 has filed cross-objections alleging that he is an agriculturist and should be given all the advantages of the Dekkhan Agriculturists' ReliefAct. The point with regard to the status of the agriculturist was not taken in the lower Court except on the last day on which the final decree was passed. The learned Judge declined at the last stage of the case to raise an issue whether the defendant is an agriculturist. Defendant No. 1 could not file cross-objections against co-respondents except in a proper case. No reasons have been shown why defendant No. 1 did not appeal against the decree of the lower Court. Assuming that the cross-objections of defendant No. 1 are admissible, it is clear that defendant No. 1 did not raise the contention that he was an agriculturist on September 30, 1927, when the preliminary decree was passed. The learned advocate on behalf of defendant No. 1 stated that he must have acquired the status of an agriculturist after the date of the preliminary decree, but was unable to state the precise time when there was a change in the status of defendant No. 1 who was a trader on a large scale. The mortgage deed describes him as a trader, and no issue was raised in the lower Court on the question of his status as an agriculturist. According to the decision of Devu, Jetiram v. Revappa Satappa : (1922)24BOMLR370 , a person who at the time the decree was passed was not but has since become an agriculturist cannot avail himself of the provisions of Section 15 B of the Dekkhan Agriculturists' Relief Act, XVII of 1879. At the date of the preliminary decree defendant No. 1 was admittedly not an agriculturist. I think, therefore, that the learned Judge was right in not allowing the plea to be raised at the time of the final decree so as to undo what had already been done in the suit and open up a fresh inquiry as to the amount due to the plaintiff. I do not think that defendant No. 1 is entitled to the indulgence, asked for at the very last stage of the case, to prove that he is an agriculturist to avail himself of the benefit of Section 15 B of the Dekkhan Agriculturists' Relief Act.
Mr. Justice Patkar went on to consider the case of defendant No. 3 who was the appellant and he pointed out that as he was a minor he could not be an agriculturist according to the ruling of this Court in Dagdu v. Mirsaheb I.L.R. (1912) 36 Bom. 496.
14. As I have already said, the case of Devu v. Revappa which Mr. Justice Patkar followed appears to have no bearing on the question of acquisition of agricultural status between a preliminary and a final decree. It is by no means clear to me that the learned Judge intended to give a considered finding on that question. But if his view was that the determination of status at the time of the preliminary decree is conclusive even for the purpose of the application of Section 15 B to the final decree, I can only say that, with all deference, I am unable to agree. There is one other point in connection with that case which may be pointed out, and that is that as the preliminary decree was on September 30, 1927, and the final decree on September 22, 1928, a period of less than a year, it was impossible for the defendants in that case, according to a decision of this Court, to have acquired the status of an agriculturist in the interval.
15. Mr. Gajendragadkar for the appellants relied on the decision of the full bench in Kashinath Rudrappa v. Ramaya Rajana I.L.R. (1936) 60 Bom. 718The facts are given in the judgment of the learned Chief Justice. The suit was a suit on a mortgage bond and the preliminary decree was made ex parte on September 21, 1932, and on October 4, 1933, the final decree was made ex parte by which it was directed that the plaintiff should recover a sum of Rs. 9,934-4-0 and certain further sums, costs and interest, and that the mortgaged property mentioned in the preliminary decree should be sold and proceeds paid into Court and dealt with by discharging the amount due under the preliminary decree. The darkhast was filed on February 13, 1934, in which the defendant claimed to be an agriculturist. The trial Judge dismissed the application holding that he could not go behind the decree for sale. The point for determination was stated by the learned Chief Justice in this way (p. 723):-
Where a decree has been passed ex parte in a mortgage suit for sale of the mortgaged property and payment of the proceeds to the mortgagee, is the defendant entitled in execution to set up his status as an agriculturist and to ask for a modification of the decree by directing payment by instalments, and consequential alterations in the order for sale?
So that the question of the application of Section 15 B arose in execution proceedings after the passing of the final decree. As both the preliminary and the final decrees were passed ex parte, the defendant in that case was entitled to reopen the question as to status on the authority of Rudrappa v. Chanbasappa (1923) 26 Bom. L. R 153 and the other cases to which I have referred.
16. In that respect the full bench case is distinguishable from the present, but the distinction is not important because in our case there is no finding against the defendant in respect of his status at the time of the final decree which is the material time. No question of res judicata therefore arises, and the fact that the decision on his status was not ex parte as in the full bench, case is immaterial. But I do not think that the case assists the appellant in any way because the only point which the full bench was really concerned with was whether Section 15 B entitled the executing Court to reopen a decree absolute for sale by allowing payment by instalments. On that point of construction, which is not the point before us, the full bench decided to follow Mancherji v. Thakordas I.L.R. (1906) 31 Bom. 120 on the principle of stare decisis. But though the case does not, in my opinion, assist the appellant, I can see nothing in it inconsistent with the view I take of Section 15 B, and I note that the learned Chief Justice has observed in the cause of his judgment ' I have no doubt that it (Section 15 B) would enable an order for instalments to be made at any time up to the final decree.'
17. There is however an unreported decision of this Court [Hari Bapuji Mirajkar v. Vishnu, Krishna Deshpande (1939) 303 F. A 1937 decided by Wassoodew and Indarnarayan JJ., on October 11, 1939 (Unrep.) which undoubtedly supports the appellants' contention. That was a case of a suit for sale on a mortgage. The suit was heard ex parte and the issue raised by the defendant in his written statement as to his agricultural status was decided against him. A preliminary decree was then passed. Subsequently one of the defendants appeared before the final decree was passed. He pleaded his status. An issue was raised as to it, and it was decided in his favour. He was therefore given the benefit of instalments. The matter then came before this Court on appeal by the plaintiffs from the final decree allowing instalments. It was argued on their behalf that in view of the preliminary decree deciding the status of the defendant it was not open to the Court to hear evidence on the question of status for the purpose of passing the final decree. That contention however was negatived, and on that point the appeal was disallowed. We have looked at the judgment of the trial Court in this case, and it appears to be quite clear that it was a case of a change of status between the preliminary and the final decree, and this Court held agreeing with the trial Court that it was open to the defendant to plead and prove that he had become an agriculturist at the date of the final decree, although he was not at the date of the preliminary decree. In coming to this conclusion Mr. Justice Wassoodew relied upon the full bench case, Kashinath v. Ramaya, to which I have already referred. With all respect, we have some difficulty in seeing how that case bears upon the question of a change of status, but whatever the reasoning was, there is no doubt that the case is an authority in favour of the appellants.
18. Mr. Manerikar argues that this decision is wrong, but it appears to me to be correct according to the reasonable and natural construction of Section 15 B. In our view, therefore, it was open to the defendants to plead the acquisition of status as agriculturists at the time of the final decree, in spite of the fact that they were held to be non-agriculturists at the time of the preliminary decree, and in spite of the fact that they cannot challenge that finding.
19. The learned trial Judge also took the view that the finding as to the status of the defendants given in the preliminary decree must be post-dated to the date of the High Court decree on November 30, 1937, and Mr. Manerikar for the respondent goes further and says that the finding should be post-dated to September 1, 1938, when the preliminary decree was modified in accordance with the High Court decision. If it is necessary to take the view that the defendants were not agriculturists in September, 1938, or even in November, 1937, they would not have had time to acquire a new status by the time the application to make the decree final was made. In my opinion however this is not a reasonable view to take. The High Court confirmed the decision of the trial Court which was that the defendants were not agriculturists at the time of the trial Court's decree. The defendants made an application to the High Court asking for permission to adduce evidence as to their acquisition of agricultural status at a later time. The application was rejected as irrelevant, presumably because the High Court considered it unnecessary to go into the question of a possible change of status after the preliminary decree. I do; not think that there is any finding of this Court, either express or implied, that the defendants continued to be non-agriculturists after the date of the preliminary decree. Mr. Manerikar argued that the framing of the preliminary decree in the form, appropriate to Order XXXIV, Rule 4, after the decision of the High Court necessarily implies that the defendants were still not agriculturists in September, 1938. He says that as notice was issued to them in August, 1938, of the plaintiff's application for drawing up a new preliminary decree the defendants ought to have raised the question of status then. But the defendants were precluded from claiming to be agriculturists for the purpose of the preliminary decree by reason of the previous finding against them. All that was open to them to do was to claim their status at the time of making the decree final, and that being so, there is no substance in the point that the plea should have been put forward at an earlier time. On the law point, therefore, the learned trial Judge appears to be wrong.
20. He dealt with, the matter on the merits also in this sense that he has expressed the view that even on the assumption that the defendants are agriculturists now they are not entitled to instalments. He points out that though the mortgage is of the year 1926, not a pie has been paid since 1932. Now the fact that no payment has been made for seven years is undoubtedly an important fact which has to be taken into consideration at the time when the question of granting instalments arises. But it is not the only fact to be considered, Obviously the financial position of the defendants is a matter which has to be taken into consideration also, and as the learned trial Judge has declined to hold any inquiry and it is not known therefore whether the defendants are agriculturists or not, it cannot be said that all the circumstances are before the Court to enable the discretion under Section 15B to be exercised properly. We are not therefore prepared to accept the view that merely because no payment has been made for seven years, it follows as a matter of course that the defendants are not entitled to instalments. But the amount of the debt is very large. It amounts now, we are told, to nearly Rs. 3,00,000. In view of this and the fact that no payment has been made since 1932, we are not prepared to consider the question of granting instalments unless the defendants are able to make a substantial payment into Court. We think the fact that the appeal was pending is no justification for their having made no. payment at all towards this very large decree, assuming that they were in a position to do so. If, on the other hand, they were not and are not in a position to make any substantial payment, we can see no object in allowing instalments. Instalments in a case of this kind must obviously be very substantial, and if the defendants have no means, there is nothing to be done but to allow the property to be sold.
21. We therefore direct that the defendants should pay a sum of Rs. 50,000 into the trial Court within a period of two months from the receipt of the papers by that Court. If this is done, we propose to issue directions to the trial Court to hold an inquiry into the status of the defendants in order that the question of allowing suitable instalments in future may be considered in the light of all relevant circumstances. If the money is not paid as directed, the fact should be reported to this Court, and we will then pass such orders as may be appropriate. The trial Court should report to this Court as soon as the money is paid, or at the end of two months if no payment is made. The costs will be dealt with in the final decree to be passed on receipt of the trial Court's report.
1. I agree. In spite of certain indefinite remarks made in the case of Maneklal Girdharlal v. Mahipatram Mansukhram I.L.R. (1927) 51 Bom. 454 where the question was not directly in point, it seems to me that once it is conceded that a plea of change of status pendents lite is permissible-as Padgaya Somshetti v. Baji Babuji I.L.R. 11 (1887) Bom. 469. clearly shows-it follows that the application of Section 15 B of the Dek-khan Agriculturists' Relief Act for the purposes of instalments is not confined to suits in which the defendant was an agriculturist at the date the suit was filed. If he was not an agriculturist at the time of the institution of the suit, a change in his status may entitle him to plead it at a later stage; and the question which we have to determine is whether in this case he could plead it at the stage between the preliminary and the final decree. Prima facie, there is no reason why he should not plead it at that stage, provided that at that stage the change of status was in being. The cases which determine the right of an agriculturist to plead in execution his status as at the decree after an ex parte decree has been passed against him as a non-agriculturist are not in point, since we are here concerned with a change of status; nor is any case in point which deals with the right of a defendant to plead in execution a change of status after the date of the decree, since that is a question of rights arising after the suit has ended. From this point of view no help can be derived either way from most of the cases cited during the hearing of this appeal. None of them could help us to determine the question of status arising between two decrees, preliminary and final, unless we were prepared to accept the contention of Mr. Manerikar that the suit as such had come to an end with the preliminary decree, since all that there remained was the formality of applying for and being given a final decree. I see no reason for accepting that contention.
2. There is however the case of Bel v. Maneklal (1931) 34 Bom. L.R. 55 of the report reasons were given by Mr. Justice Patkar for refusing to allow the cross-objections of defendant No. 1, who before the passing of a final decree asked to be allowed to prove his agricultural status arising after the preliminary decree. Permission was refused on the basis of the decision in Devu Jetiram v. Revappa Satappa : (1922)24BOMLR370 and because it was felt that permission would involve opening up a fresh inquiry as to the amount due to the plaintiff. With respect, I am unable to regard this decision as binding on us as a general authority, since the right of the defendant to raise the cross-objections at all was doubtful. The case relied upon did not really touch the question then in issue, and in the present case no question of opening up a fresh inquiry for the amount due could arise.
3. Thus I can find no authority directly against the view which the appellants-defendants have asked us to accept. On the contrary, there is the recent decision in Hari Bapuji Mirajkar v. Vishnu Krishna Deshpande (1939) 303 F. A. 1937 decided by Wassoodew and Indar narayan JJ., on October 11, 1939 (Unrep.), which is directly in their favour. Moreover, by Section 15 B of the Dekkhan Agriculturists' Relief Act the Court is empowered to give the relief of instalments ' when passing a decree,' and in my view it is unreasonable to say that the word ' decree ' as there used cannot include a final decree. Once this general point of law is decided in favour of the appellants, I can see no circumstance in this case, which necessarily disentitles them from pleading a change of status between the preliminary and the final decree. No question of res judicata is in their way, and it cannot be said at this stage that the change of status, if any, is too recent to be recognised.
4. I agree, however, that it is impossible to grant instalments unless the defendants first pay some substantial sum, and useless to order an inquiry as to status unless instalments are likely to be granted. That being so I agree with; the order proposed.
5. The Subordinate Judge has now reported that the defendants have not paid the money as directed. The result is that for the reasons already given we are unable to allow instalments and the appeal must be dismissed and the lower Court's decree confirmed. We think, however, that as the appellants have succeeded on the legal point, it will be reasonable to make no order as to the costs of the appeal.