1. The facts are that the judgment-debtor, appellant, was sued in the Subordinate Court at Ahmednagar on a promissory note for Rs. 3,600. A consent decree was passed against him for Rs. 3,100 payable by-yearly instalments of Rs. 500, the whole remaining amount becoming, recoverable in case two instalments failed. One of the conditions of the decree was that the defendant waived his right to plead agricultural status both in the suit and in any execution proceedings which might follow on it. He paid Rs. 2,500 under the decree, but failed to make good the last two instalments due, and recovery of these is sought by his arrest and imprisonment in the civil jail.
2. The original Court held that the judgment-debtor was not precluded from raising such a plea by his waiver of status in the terms of the decree, and finding he was an agriculturist, dismissed the application for execution. The learned District Judge in first appeal took the opposite view and directed that execution should proceed. This is the order appealed against. The relevant provisions of the Dekkhan Agriculturists' Relief Act are, that an agriculturist must be sued in the Court in the original jurisdiction of which he resides ; and that ' no agriculturist shall be arrested or imprisoned, in execution of a decree for money, whether before or after this Act comes into force'-s. 21.
3. The judgment-debtor being a Marwari, the money-lending class, was not prima facie an agriculturist. Whether he pleaded that status or not in the suit is not clear. Had he done so and established the contention, the Ahmednagar Court would have had no jurisdiction.
4. The compromise contained a term that he was not to plead it, either in that suit or in any subsequent execution proceeding. He had in fact done so under the threat of arrest and has made good his contention. The original Court thought that he could be allowed so to contend on several grounds. The first was that he could not be allowed to waive a privilege conferred on him by statute on the ground of public policy ; the second, that the Court was not bound to enforce the decree as it stood ; and lastly, on an interpretation of the actual term of the decree, which, the learned Subordinate Judge thought, was not really intended to take away the defendant's statutory privilege, but only to give the Nagar Court jurisdiction.
5. The learned District Judge thought that the judgment-debtor could waive his status as an agriculturist and decline to take advantage of any privileges conferred upon him 'by that statute, that the point did not involve any question of public policy ; and that the judgment-debtor having accepted the compromise and its terms and having taken advantage of it and acted on its provisions, could not now turn round and be heard to say that he was not bound by the waiver of status it contained. The learned Judge of the original Court has correctly stated the law to be, that status can be claimed in such cases, when the decree is about to be executed, whatever may have been the judgment-debtor's status at the date of suit, or date of decree. Though the point is so simple, there is no decided case on it. It was discussed in an unpublished decision of this Court, Dagadabai Narayan v. Rajmal Banechand (1933) F.A. No. 275 of 1932, decided by Baker arid Broomfield JJ. on November 30, 1933 (Unrep.); but it did not really arise in that appeal. We have been referred to a series of adjacent cases, the principal of which were :- A. C. J.
6. In Abdul Aziz v. Kanthu Mallik I.L.R(1910) Cal. 512, it was decided, in a case under the Bengal 1934 Tenancy Act, that where the provision was that rent must be paid to the registered owner, it could not be defeated by an estoppel. It has been held in ^ Gadigeppa v. Balangowda : (1931)33BOMLR1313 that a minor is not estopped from pleading his rAGhunaeh-minority by a similar agreement and that a rule of evidence cannot be allowed das to override a statutory provision. Other cases referred to were :-
7. Patlu v. Naru (1905) 7 Bom. L.R. 688, Shivram Udaram v. Kondiba Muktaji I.L.R.(1884) 8 Bom. 340, Maneklal v. Mahipatram : AIR1927Bom492 , Joggeswar Mahata v. Jhapal Santal I.L.R.(1923) Cal. 224, Rehmatunnisa Begum v. Price I.L.R.(1917) 42 Bom. 380 : 20 Bom. L.R. 714., Shivayagappa v. Govindappa I.L.R (1913) 37 Bom. 614 : 15 Bom. L.R. 768, Ambanna v. Kallappa (1925) 28 Bom. L.R. 567, Sridhar v. Babaji : AIR1914Bom248 , Ahmed Bhauddin v. Babu : AIR1930Bom135 , Jagadbandhu Saha v. Radha Krishna Pal I.L.R(1909) Cal. 920, Mirza v. Jhanda Ram (1930) I.L.R. 12 Lah. 367, Surajmull Nagoremull v. Triton Insurance Co. , Gobinda Chandra Pal v. Dwarka Nath Pal I.L.R (1908) Cal. 837, and Mareppa v. Gundo Annaji I.L.R(1918) . 43 Bom. 1 : 20 Bom. L.R. 469. None of these cases is directly in point, but Joggeswar Mahata v. Jhapal Santal is very similar. It was a case decided under the Bengal Tenancy Act, and it was there held that it was not open to the persons concerned (some aboriginals) to waive the rights conferred on them by the Act.
8. It is really a case of conflict between a rule of evidence and procedure on the one hand and a fundamental law on the other. Ordinarily, except in India under the Indian Limitation Act, and perhaps in one or two other cases, it is open to an individual to waive a right he has, or to concede an advantage given him by law ; or so to speak, to barter it away for a valid consideration. The Dekkhan Agriculturists' Relief Act naturally does not contain any specific provision, saying that an agriculturist defendant must plead his status-what happened here, if the judgment-debtor was an agriculturist at the time of the suit, was that he allowed himself to be sued as a trader and in the Ahmednagar instead of the Shevgaon Court, and to have a decree passed against him in consideration of obtaining some remission of the amount he owed, and instalments, while his creditor got rid of the account to be taken under Section 13 of the Dekkhan Agriculturists' Relief Act, and probable difficulties in executing his decree. Prima facie, as has been argued, this would be a perfectly valid arrangement, and since it ultimately took the form of a decree, not alterable at the judgment-debtor's instance, who could not be heard to say that it was invalid. This is the view taken by the learned District Judge.
9. But, I think, we must look deeper into the matter. Any judgment-debtor is by the Act entitled to plead agricultural status in execution proceedings and to have the question decided, so that if he succeeds, execution may proceed under the special provisions of that Act. The scheme of the Act is to provide a special procedure in the investigation of claims made against agriculturists. Whatever they may have bound themselves to, the Court is bound to set the original contract aside, to inquire into it from its very beginning, and to pass a decree on certain denned lines, after taking an account. The decree so passed is subject to special rules in execution. The Act really provides, in the cases of agriculturists, a kind of simple bankruptcy procedure, provisions against usury on the general lines of law relating to that subject, and a mode of execution different, to that of the ordinary decree.
10. The object of the Act is well-known. It was to prevent the peasant proprietors of the original four districts losing all their proprietary interest and becoming landless day labourers, or at least no more than yearly tenants of the money lenders. All the provisions of the Act are framed to this end, and its policy is clearly to protect the agriculturist against misfortune, or his own improvidence, as the case may be. That it is a statute based on public policy has been held in several of the cases quoted above-as in Path V. Naru and Shiv-ram Udaram v. Kondiba Muktaji.
11. This being so, there is ample authority for holding that its mandatory provisions, such as the one contained in Section 21, cannot be whittled away by any agreement between a proved agriculturist and his creditor, for the effect of holding otherwise would be to allow what the statute forbids on grounds of public policy-the arrest of an agriculturist-judgment-debtor in execution of a money decree, and to afford an easy means of evading, what was intended to be enforced in suits between parties like those in the present case.
12. We think that the view taken by the original Court was correct and that of the District Judge was erroneous. We reverse the appellate Court's order and restore: that of the original Court on this point.
13. I agree. In this case the appellant (original defendant and judgment-debtor), who had pleaded the status of an agriculturist, agreed to waive his rights to plead his status both in the suit and in the subsequent execution proceedings, and a consent decree was passed by the Court. Later on, when he failed to pay the last two instalments due from him and the judgment-creditor sought recovery by applying for his arrest and imprisonment in the civil jail, he raised the plea of his agriculturist status and sought protection from arrest and imprisonment under the provisions of Section 21 of the Dekkhan Agriculturists' Relief Act.
14. The question before us is whether by his previous waiver of his right to raise such a plea he was estopped from doing so. It does not appear to me that it can be said that this is strictly a case of estoppel against statute or an Act of legislature. As pointed out by the learned District Judge, it cannot be said that the waiver of the right to plead an agriculturist's status is forbidden under the Dekkhan Agriculturists' Relief Act, and this waiver cannot be construed as contravening any express provision of the said Act.
15. I think, however, that the defendant's waiver offends against the public policy embodied in the Dekkhan Agriculturists' Relief Act. To say that one who claims to be an agriculturist can, before he gets an opportunity to prove his status as such, barter away his right so to plead, even in the execution proceedings that are to follow, appears, to my mind, to be opposed to the public policy of an Act designed to protect the interests of agriculturist litigants. Though no agriculturist party to a suit is expressly forbidden by the Act to refrain from pleading his status, the special provisions of the Act cast an imperative duty on the Court to safeguard his interests in several ways, both at the trial of the suit and in execution proceedings. It was held in Path v. Naru (1905) 7 Bom. L.R. 688 that no Court can neglect or omit the performance of the imperative duty cast on it under the Act on the ground that the party for whose benefit it was created waived it. A judgment-debtor is entitled under the Act to plead his status in execution proceedings and the provisions of Section 21 are mandatory :-' No agriculturist shall be arrested or imprisoned in execution of the decree for money whether before or after this Act comes into force.' In Gadigeppa v. Balangowda : (1931)33BOMLR1313 , in which case an infant, by representing that he was of age, had induced another person to enter into a contract with him, the learned Chief Justice observed that no person can, by application of the law of estoppel, or by any rule of procedure, acquire or have assigned to him a status or legal capacity which the substantive law denies to him. In the present case the substantive law has given to the appellant a legal capacity of which the respondent seeks, by application of the law of estoppel, to deprive him ; and it seems to me that a similar consideration applies. To say that Section 21 of the Act would protect the appellant only after he is allowed to plead his status and after he has proved such status would, in my opinion, be putting a strict and literal interpretation on the provisions of the Act; but such an interpretation would no doubt also defeat the very object of those provisions, which allow a judgment-debtor to plead the status of an agriculturist in execution proceedings, even though he might not have pleaded it in the suit and even though he might not have been an agriculturist at the trial of the suit. To allow him to deprive himself of this right by a previous agreement would clearly, in my opinion, be against the public policy embodied in the Dekkhan Agriculturists' Relief Act.
16. Of the several cases to which the learned advocates on both sides referred in the course of their arguments (none of which is directly in point, as remarked by my learned brother,) I would refer to two as having some bearing on the question we have been considering. In Rehmatunnisa Begum v. Price I.L.R(1917) 42 Bom. 380 : 20 Bom. L.R. 714. the defendants were a firm of contractors, who had undertaken the construction of a dock and formed a partnership with the plaintiff for quarrying and for the supply of materials for the work. In the agreement it was provided that the partnership was to continue until the supply of granite or other stone for the construction of the dock was completed and that the partnership was thereupon to terminate. It was held that the plaintiff was entitled to have a dissolution at an earlier date and their Lordships held that a partner's right to a decree for dissolution rested, in its origin, not on a contract but on his inherent right to invoke the Court's protection on equitable grounds. In the case before us the defendant has a statutory right to invoke the Court's protection and cannot be said to be on a less firm ground than the plaintiff in this case. The second case I would refer to is Joggeswar Mahata v. Jhapal Santal I.L.R(1923) Cal. 224, a case under the Bengal Tenancy Act. The case concerned certain aboriginals on whom special rights have been conferred under Chapter VII-A of the said Act. It was held that the object of the said enactment 'was, the protection of aboriginals and that consequently it was not open to an aboriginal to waive the benefit of the provisions of the Act. I am of opinion that the considerations which prevailed in this case apply with equal force in the case before us.
Aug. 6. Murphy, J.
17. This matter arises from an order in execution. The-original Court found on the question of fact that the judgment-debtor was an agriculturist. The learned District Judge held that it was not open to him in the circumstances to plead that he was one, and we have found on this last question that it was open to him, and that he is entitled to make that plea. We proposed under Section 103, Civil Procedure Code, to decide this question of fact ourselves, but we find that there are no materials before us as the record had not been sent for. In these circumstances we must reverse the decree of the District Court and remand the appeal to it for a finding on the question of fact, whether the judgment-debtor is an agriculturist or not.
18. The judgment-debtor should get his costs of this appeal and those in the: District Court should abide the result of the finding.