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Narayan Govind Deshpande Vs. Dhondo Krishna Tathe - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 265 of 1924
Judge
Reported in(1926)28BOMLR305; 94Ind.Cas.76
AppellantNarayan Govind Deshpande
RespondentDhondo Krishna Tathe
DispositionAppeal allowed
Excerpt:
.....be pleaded in subsequent darkhast.; in the case of a decree passed ex parte the defendant can, in execution proceedings, show than he was an agriculturist at the date of the decree and claim instalments under section 15 b of the dekkhan agriculturists' relief act. this, he can do, in spite of the fact that he has not claimed the privilege in previous execution proceedings arising out of the same decree.;rudrappa v. chanbasappa (1923) 26 bom. l.r. 153, extended. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point..........ohanbasappa (1923) 26 bom. l.r. 153 that where a decree is passed ex parte, the defendant can, in execution proceedings, show that he was an agriculturist at the date of the decree and claim instalments under section 15 b of the dekkhan agriculturists' relief act. the defendant is, therefore, entitled to prove that he was an agriculturist at the date of thedecree. seeing that he is able to rely on that authority the only question we have to decide at present is whether the defendant should be allowed to prove that he was an agriculturist at the date of the decree. it is argued that there is a bar to his doing that owing to the fact that there were previous darkhasts in which the defendant had not claimed that he was an agriculturist. but as far as we know there is no rule of limitation.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this Darkhast the defendant pleaded that he was entitled to the status of an agriculturist. The Subordinate Judge said : ' The contention conies too late and it cannot be recognized in execution now.' It has been held by this Court in Rudrappa v. Ohanbasappa (1923) 26 Bom. L.R. 153 that where a decree is passed ex parte, the defendant can, in execution proceedings, show that he was an agriculturist at the date of the decree and claim instalments under Section 15 B of the Dekkhan Agriculturists' Relief Act. The defendant is, therefore, entitled to prove that he was an agriculturist at the date of thedecree. Seeing that he is able to rely on that authority the only question we have to decide at present is whether the defendant should be allowed to prove that he was an agriculturist at the date of the decree. It is argued that there is a bar to his doing that owing to the fact that there were previous Darkhasts in which the defendant had not claimed that he was an agriculturist. But as far as we know there is no rule of limitation which prevents an agriculturist from claiming to be allowed to prove his status at any stage of the proceedings so that if successful he may ask the Court to apply the provisions of the Act in his favour.

2. The appeal, therefore, must be allowed and the case must go back to the executing Court to decide whether the defendant was an agriculturist at the date of the decree.

3. The defendant is entitled to his costs.


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