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Laxman Ganesh Jog Vs. Ramabai Venkatesh Jog - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1926)28BOMLR736; 95Ind.Cas.878
AppellantLaxman Ganesh Jog
RespondentRamabai Venkatesh Jog
DispositionAppeal dismissed
Excerpt:
dekkkan agriculturists' belief act (xvii of 1879), secs. 20, 71, 3(y) of (z)-suit to file an award made out of court-decree on award-inslalments cannot be granted in execution-agriculturist.; the provisiona of section 20 of the dekkhan agriculturists' relief act do not apply to a decree passed in terms of an award arrived at on arbitration out of court, it not being a suit of the description mentioned in section 3, clause (y), or clause (s) of the act, nor does section 71 of the dekkhan agriculturists' relief act ordinarily apply to such a decree. - .....to prove that they are agriculturists, and that, therefore, provisions of section 71 of the dekkhan agriculturists' relief act are applicable in their case. the decree that was passed against them was one granting an application to file an award and passing a decree in terms of the award. no question of the status of the defendants as agriculturists or otherwise was raised either in the proceedings prior to the award or in the proceedings in court after the filing of the award, and such a question would not have been relevant. the case of mulji v. goverdhandas : air1923bom36 which has been relied upon by the lower court in support of its view that the appellants, defendants nos. 5 and 8, cannot now plead that they are or were agriculturists, is not applicable; because it cannot be.....
Judgment:

Fawcett, J.

1. The appellants say that they are entitled in execution proceedings to prove that they are agriculturists, and that, therefore, provisions of Section 71 of the Dekkhan Agriculturists' Relief Act are applicable in their case. The decree that was passed against them was one granting an application to file an award and passing a decree in terms of the award. No question of the status of the defendants as agriculturists or otherwise was raised either in the proceedings prior to the award or in the proceedings in Court after the filing of the award, and such a question would not have been relevant. The case of Mulji v. Goverdhandas : AIR1923Bom36 which has been relied upon by the lower Court in support of its view that the appellants, defendants Nos. 5 and 8, cannot now plead that they are or were agriculturists, is not applicable; because it cannot be said that it has already been impliedly decided that they are not agriculturists. But the question still remains whether the provisions of Sections 20 and 71 can properly be applied to the proceedings against the appellants for enforcing the decree obtained against them. The respondent's counsel has drawn our attention to Govindrao Narhmr v. Ambalal Mohanlal I.L.R.(1911) 35 Bom. 310 13 Bom. L.R. 352 where it was decided that, in a case where a decree had been passed in terms of an award which was arrived at on arbitration out of Court, on an application to file that award, the Court had no power to make any order as to instalments under Section 15B of the Dekkhan Agriculturists' Relief Act, which did not apply, inasmuch as the application to file the award was not a suit of the description mentioned in Section 3, Clause (y), of the Act. That decision is based upon the view, which had already been taken by this Court in Mohan v. Tukaram I.L.R(1895) . 21 Bom. 63 that an application to file an award is not a suit of the kind contemplated by the Dekkhan Agriculturists' Relief Act. Section 15B accordingly could not apply as the decree was not obtained in a suit for redemption, foreclosure, or sale, of the descriptions mentioned in Section 3, Clause (y) or Clause (z), of the Dekkhan Agriculturists' Relief Act. It seems to me that this decision equally applies to Section 20 of the Act, which must obviously be restricted to the case of a decree passed against an agriculturist in a suit under the Act. If, therefore, this suit to file an award is not a suit of the description mentioned in Section 3 of the Act, then it cannot be said that the decree was one of the kind referred to in Section 20. Section 71 also only applies to payments out of Court made in proceedings under the Dekkhan Agriculturists' Relief Act, and if the decree was obtained in a suit which does not come under the Act, I cannot see how it can be legitimately held that any proceeding to recover an amount due under such decree is a proceeding under the Dekkhan Agriculturists' Relief Act. It has in fact been held in Sind that the principle of the decision in Govindrao Narhar v. Ambalal Mohanlal I.L.R.(1911) 35 Bom. 310 equally applies in the case of Section 71, and that decision seems to me to be correct. I would, however, leave open the question of the possible application of Section 71 to a case different from the present, where there might have been fraud or some other consideration taking the case out of the ordinary category of that with which we have to deal here.

2. For these reasons, in my opinion, the order of the Subordinate Judge declining to go into the point whether the appellants were agriculturists is correct, and I would dismiss the appeal with costs.

Madgavkar, J.

3. I agree.


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