Basil Scott, Kt., C.J.
1. The facts which give rise to the present appeal are that the plaintiff's predecessor-in-title executed a mortgage in 1885 in favour of the defendant's predecessors-in-title under which the mortgagee was to be entitled to possession for a period of sixteen years. During the currency of that period, in the year 1888, a Marwari creditor of the mortgagor filed a suit on a simple money-claim in the Vinchur Court and obtained a decree. In execution of that decree the equity of redemption of the mortgagor, that is to say the subsisting right, title and interest of the mortgagor, in the mortgaged property was put up for sale and purchased by a person Bandu Uderam who is not a party to these proceedings. In the year 1896 the mortgagee took a conveyance from Tikaram Uderam who described himself as the brother of Bandu Uderam in whose name the Court-purchase had taken ace of the interest purchased at that sale. Then at the end of the year 1908 the plaintiff filed this suit for redemption of the mortgaged property alleging in his plaint that the defendants resist redemption on the ground that the right, title and interest of the plaintiff Kondaji in the land in suit was attached and sold in execution of a simple money-decree at the instance of one Magniram Marwadi; that Magniram himself was the auction-purchaser in execution; that Magniram's heir sold that right to defendant No. 1 and the defendant No. 1 resists the plaintiff's right to sue on the ground of his being a purchaser of the land in suit. The plaint proceeds, ' The plaintiff contends that he being an agriculturist could not be deprived of his right in the land by any attachment of his right in execution of a simple money-decree, that the sale in execution is illegal and of no effect whatever, and that Magniram (the auction-purchaser) and defendant No. 1 could not be said to be the owners of the said land as against the plaintiff No. 1, and that the plaintiff's right of redemption is not in any way affected by the sale.'
2. On those allegations in the plaint the learned Subordinate Judge assumed that the Vinchur Court had sold the right, title and interest of the plaintiff and that the certified copy of the certificate of sale, Ex. 11, was good proof of that sale ; but he held that the sale was inoperative by virtue of the provisions of Section 22 of the Dekkhan Agriculturists' Relief Act.
3. An appeal was preferred to the learned District Judge who decided upon the facts that the plaintiff and the original mortgagor had always been agriculturists from the date of the mortgage, and he adopted the conclusion of the Subordinate Judge that the sale was inoperative under Section 22 of the Dekkhan Agriculturists' Relief Act.
4. A second appeal was preferred from that decision to this Court and was tried by Mr. Justice Batchelor sitting alone as a Division Court. Upon the findings of fact of the District Court it was taken for the purpose of the decision that the plaintiff and his predecessor had been agriculturists from the date of the mortgage in 1885. The learned Judge held that there was nothing to show what happened or did not happen in the Vinchur suit. What the pleadings were in that suit, what the issues were, what the findings were, what was claimed on one side and denied on the other, nothing was known, and the mere omission to describe the respondent as an agriculturist was an insufficient basis from which to infer that at the trial of the suit or the hearing of the execution proceedings f the mortgagors omitted to plead their status, and that it did not follow that the Vinchur Chief's decision was not arrived at in spite of the agricultural position of the mortgagors being brought to the knowledge of the Court in simple inadvertence or forgetfulness of the provisions of Section 22 of the Dekkhan Agriculturists' Relief Act; and on these grounds the learned Judge held that the sale was a nullity under Section 22 and affirmed the decision of the District Court.
5. It is quite clear from the judgments of the lower Courts that there was no evidence adduced in the case to show whether or not the defendant in the Vinchur Court was known to be an agriculturist at the time of the hearing or of the execution proceedings.
6. The plaintiffs have been unable to show that the suit was instituted by the Marwari creditor after obtaining a certificate of a conciliator under the Dekkhan Agriculturists' Relief Act, which, if the defendant was an agriculturist, would be necessary before the suit could be entertained. In the absence of evidence, therefore, the question is, what is the proper inference which will be drawn in law ?
7. Now the provisions of Section 22 of the Dekkhan Agriculturists' Relief Act are provisions conferring upon members of a certain class great privileges in litigation. The section confers upon a person who is shown to be a member of the privileged class the right to resist the attachment or sale of any of his immoveable property and to contend that if an attachment or sale took place in violation of the provisions of the section, such attachment or sale shall be held to be void.
8. How then is the Court to know when it is authorized to attach and sell property and when it is not 1 The ordinary rule is that set out in the Civil Procedure Code, Section 60, which reproduces Section 266 of the Code of 1882. It provides that property liable to attachment and sale in execution of a decree is lands, houses etc., belonging to the judgment-debtor. An agriculturist in order to resist the application of that general rule must, we think, show that he belongs to the privileged class so as to render Section 22 of the Dekkhan Agriculturists' Relief Act applicable to his case. That conclusion seems to follow from the provisions of Sections 101, 102 and 103 of the Evidence Act. In the absence of proof we, therefore, hold that there was no reason to treat the immoveable property sold by the Vinchur Court as the property of an agriculturist.
9. A further presumption may be applied to the case. The learned Judge of the Division Court says, ' It does not follow) that the Vinchur Chiefs decision was not arrived at in spite of the agricultural position of the mortgagors being brought to the knowledge of the Court'. But the maxim of law which must be followed in the absence of evidence is that everything which ought to have been done was done by the Court: see Section 114, ill. (e), of the Evidence Act and the judgment of Lord Justice Lindley in Harris v. Knight (1890) 15 P.D. 170. It cannot, therefore, be assumed that the Judge of the Vinchur Court acted contrary to the law in passing orders for a sale of the judgment-debtor's property.
10. On behalf of the respondents reliance has been placed upon the judgment of this Court in Mahalavu v. Kusaji I.L.R. (1893) Bom. 739, which is no doubt a case on the facts very much resembling the present. It is, however, evident from the report that the point which we have been considering was not presented to the Court at the time of the argument and was not discussed in the judgment, unless we assume that the finding of the Subordinate Judge that the plaintiff was an agriculturist was a finding that the plaintiff was a proved agriculturist at the time of the original decree of 1875 mentioned in the report. If the finding went to that length, then the judgment would not be applicable to the facts of the present case. If the finding did not cover that point, then the point upon which we are deciding this case is a point that was not present to the mind of the Court at the time of the decision. But there is a more recent decision of this Court upon an almost exactly a similar point in which the view which we are now taking was adopted. That is the decision reported in Pandurang Balaji v. Krishnaji Govind I.L.R. (1903) Bom. 125 : 5 Bom. L.R. 799, the section under consideration being not Section 22 of the Dekkhan Agriculturists' Relief Act, but Section 266 (c) of the Code of 1882, which provides that the following particulars shall not be liable to attachment or sale, namely, the materials of houses and other buildings belonging to and occupied by agriculturists. In that case Sir Lawrence Jenkins said : ' The house, apart from class. (c)of Section 266, clearly could be attached and sold in execution of the decree, and it was only if it were shown that it fell within class. (c) that it could not be attached and sold. But admittedly the judgment-debtor never suggested, much less proved, that class. (c) had any application to the f case. It is a general rule that in Courts of law only those 1 facts can be taken to exist which are proved j so that it is manifest that in the absence of proof the exemption from liability to attachment or sale did not exist for the purposes of the execution proceedings. Therefore the executing Court had complete jurisdiction to make the order it did '.
11. For these reasons we set aside the decree of the lower Court and dismiss the suit with costs throughout.