1. The two points that arise for consideration in this appeal are :
1. Whether an agricultural labourer is an agriculturist within the meaning of Section 9(2) of the Code of Civil Procedure, and
2. Whether the judgment-debtors Nos. 12, 15, 35 and 51 are proved to be agricultural labourers?
2. On the first question, it must be stated at once that the Civil Procedure Code has not defined the word 'agriculturist', and therefore the question must be resolved by a reference to the decisions bearing on the point. This question directly arose for consideration before a Bench of the Bombay High Court in Devara Hegde v. Vaikunt Subaya, ILR 41 Bom 475 : (AIR 1917 Bom 253). In that case, one of the judgment-debtors filed an application claiming that the house attached in execution should not be sold by reason of the provisions of Section 9(2), C. P. C. as he was an agriculturist. It was admitted that the defendants, judgment-debtors lived solely by agricultural labour. They had no lands either as owners or as tenants but they work for others. They continued to live in the house which is their ancestral house from the time they held the lands as their own. It was held by Scott, C. J. who spoke for the Court, thus:
'A person who earns his livelihood by tilling the soil can hardly be said not to he a professed cultivator of the land. I do not think that in ordinary parlance there is any difference in meaning between 'an agricultural population' and 'a population of agriculturists'. If therefore a professed cultivator of the land earning his remuneration from another employer owns a house in which he lives he should be protected from the attachment of that house by reason of the provisions of Section 9(2)'.
In this view, the learned Judges held that the house, is protected from attachment.
3. This case was followed by a Bench of the Nagpur High Court in Gowardhandas v. Mohanlal, AIR 1938 Nag 366 where it is laid down that a person who cultivates the land as a labourer, though neither a land owner nor a tenant, is an agriculturist. That is one of the several propositions laid down by the Bench of that High Court. At p. 368, the learned Judges observed thus .
'In ILR 41 Bom 475: (AIR 1917 Born 253) it was held that a person who has become mere labourer is, being a person engaged in cultivating the soil, an agriculturist though he owns no land and is not a tenant. We respectfully agree. Such a person is engaged in agriculture.'
This decision of the Nagpur High Court was cited with approval by the Supreme Court in Appasaheb v. Bhalachandra, : 2SCR163 . The question which arose for consideration in the case decided by the Supreme Court was whether the house, which belonged to a judgment-debtor owning a watan property is liable to attachment under Section 9(2), C. P. C., inasmuch as the judgment-debtor in that case had very extensive landed property and was also getting an income of Rs. 25,000/-per year from the lands. He was keeping his cattle in the Wada (house) where his servants also stayed, and his agricultural implements were kept. The produce of the lands was also stored in the Wada. The judgment-debtor used to supervise the agricultural operations and his servant. The judgment-debtor also owned lands in 10 or 12 villages yielding an income of Rs. 35,000/- to Rs. 40,000/- from his lands. It was also in evidence that the judgment-debtor and his brothers worked personally in the fields.
But it was found on the evidence that the judgment-debtor was not entirely dependent for his livelihood upon the income from the home-farm and that apart from the income of the home-farm, be had substantial income from the other lands, and there was nothing to show that this income derived from the other lands was the result of cultivation by him. On those facts, the question for consideration was, whether the Wada or the house should be attached. The Supreme Court referred to a Full Bench decision of the Madras High Court reported in AIR 1937 Mad 551) (FB) and several other decisions on the point, and finally by a majority held as follows:
'On a fair reading of the provisions of Clause (b), that which is saved to an agriculturist are his implements with which he tills the soil and such, cattle and seed-grain which, in the opinion of the Court, are necessary for him to use in order to enable him to maintain himself.'
It was also observed therein :
'The word 'agriculturist' in this clause must, carry the same meaning as the word 'agriculturist' in Clause (b) and the house must be occupied by him as such. The object of the exemption in Clause (c) apparently is that an agriculturist should not be left without a roof over his head. In other words, the Legislature intended by Clauses (b) and (c) to prevent an agriculturist becoming destitute and homeless.'
The learned Judges of the Supreme Court also observed as follows :
'The Wada in question is a big structure where the appellants reside but if they are not agriculturists within the meaning of that word in Section 9(2), the Wada cannot be exempted from attachment. It seems to us that even if it is not necessary that a person must till the land with his own hands to come within the meaning of the word 'agriculturist' he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. In the present case it is quite obvious that even if the appellants can be described as agriculturists in the widest sense of that term, they are not agriculturists who are really dependent for their maintenance on tilling the soil and that they arc unable to maintain themselves otherwise.'
4. The Full Bench case decided by the Madras High Court as well as the Supreme Court case, have not considered whether an agricultural labourer is an agriculturist within the meaning of Section 9(2), C. P. C. At the same time the test laid down by the Madras High Court, which is accepted by the Supreme Court, has not laid down anything to indicate that an agricultural labourer is not an agriculturist. On the other hand, to my mind, the test of tilling the soil and being unable to maintain himself otherwise laid down in those cases, is one, which is pre-eminently satisfied by an agricultural labourer. In view of the above authorities. I am of the opinion that an agricultural labourer is an agriculturist within the meaning of Section 9(2), C. P. C.
5. Sri Seetharamaraju on behalf of the respondents contended that the decisions in Muthuvenkatarama v. Offl. Receiver, South Arcot, AIR 1926 Mad 350, Ashamatulla Sarkar v. Ran Mahmud, 20 Cal WN 874: (AIR 1916 Cal 891 (1)), : 2SCR163 , ILR 1937 Mad 777 : (AIR 1937 Mad 551) (FB), Shiamlal v. Sahodra Devi, : AIR1960All429 , which all suggest that a mere agricultural labourer cannot be an agriculturist, but he must at least have some interest in the land. It is no doubt true that in all those cases the fact that the judgment-debtor owned land or had interest in the land was also referred to and relied upon. But that by no means supports the contention that a person who does not own agricultural land, but is only an agricultural labourer, is not entitled to the benefits of Section 9(2), C. P. C. The Counsel also relied on the definition of 'agriculturist' in the Madras Agriculturists' Relief Act. That is a special enactment, and the definition therein cannot be accepted for construing Section 9(2), C. P. C.
6. Finally, the learned Counsel wanted me to hold that the decision in ILR 41 Bom 475 : (AIR 1917 Bom 253) is not good law. I am unable to accede to that request. On the other hand, I respectfully follow the very cogent reasons given by the learned Judges for holding that an agricultural labourer is an agriculturist.
7. The view of the Addl. District Judge that an agricultural labourer is not an agriculturist is not tenable and it is set aside. But that does not dispose of this appeal. The appeal is only on behalf of the four judgment-debtors Nos. 12, 15, 35, 51. So far as Nos. 15 and 51 are concerned, they have not filed affidavits in proof of the fact that they are agricultural labourers. The only evidence before the Court were Exs. A.1 and A.2, their depositions, to the effect that they were mere labourers living on daily wages. It is not clear whether the labour was agricultural labour or otherwise. The learned Addl. District Judge disposed of this case by holding that they are stray labourers prepared to do any work, but they were not exclusively agricultural labourers. It is hardly a satisfactory way of disposing of the matter. Judgment-debtors Nos. 12 and 35 filed affidavits, but the lower Court did not rely upon them on the ground that it is their mere ipse dixit.
A further contention is now raised on behalf of the respondents (Decree-holders) that affidavits cannot be acted upon in execution petitions which are original proceedings, and not Interlocutory Applications. Reliance was placed for this contention on Order 19, Rules 1 and 2, C. P. C. and also the decisions in Saraswathamma v. Amruthamma, ILR 1957 Andh Pra 165 and Gopikabai v. Narayan, AIR 1953 Nag 135. This is no doubt a valid objection, but there is nothing to indicate that when the learned Addl. District Judge adopted this procedure and received these affidavits without examining witnesses, any objection was raised by the respondents. I cannot, therefore, on this technical ground, reject the contention raised on behalf of the judgment-debtors, and allow their residential houses to be sold. This matter requires a more careful investigation. Both parties have agreed that an opportunity may be given to adduce evidence.
8. This appeal is, therefore, allowed and E. P. No. 17/61 is remanded. The Addl. District Judge, Eluru, is hereby directed to restore the Execution Petition to his file, and dispose it of in accordance with law, and in the light of the observations and findings already given He will give an opportunity to both parties to place before the Court all oral and documentary evidence relating to the contention whether the judgment-debtors arc agricultural labourers or not. Costs will abide the result.