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Mahadeo Agrahri vs Dhaunkal Mal

High Court Of Judicature at Allahabad|11 December, 1945


1. This is a judgment-debtor's appeal. The decree-holder respondent held a simple money decree in execution of which he attached the two houses in dispute. The judgment-debtor raised an objection to the attachment and sale of the houses in dispute upon the ground that he was an agriculturist and under Section 60(1)(c), Civil P.C., the houses were not liable to attachment and sale. It appears that this decree was put in execution for the first time in 1936 and during the pendency of the execution proceedings an application was made by the judgment-debtor under Section 5, U.P. Agriculturists' Relief Act, by which he prayed for instalments. He prayed, that the decree in question might be converted into a decree for payment by instalments. At that time, the houses in dispute now had been attached by the decree, holder. Counsel for the judgment-debtor made a statement in Court agreeing to the continuance of the attachment of the two houses along with other properties and stating that in default of payment of the decretal amount the two houses and the other property mentioned therein might be sold. The decree-holder also made a statement to the effect that the judgment-debtor was an agriculturist. On the basis of the said two statements the Court passed the following order:
Judgment-debtor is allowed to pay the money in four yearly instalments payable in Jeth 1938, Jeth 1939, Jeth 1940 and Jeth 1941; on failure to pay any two consecutive instalments the balance due shall become realisable. The two houses attached and plots 7/1 and 7/2 of haqiat mutfarriqa of village Hirapur, pargana Zafrabad shall remain attached and charged till realization....
2. This order was passed on 10th April 1937. The executing Court allowed the objection of the judgment-debtor and ordered that the property be released from attachment. The decree-holder went in appeal and. the learned Civil Judge reversed the order of the executing Court and dismissed the objection of the judgment-debtor. The ground upon which the judgment-debtor's objection has been dismissed by the lower appellate Court is that in consequence of the consent order mentioned above, the judgment-debtor was estopped from taking an objection as to the saleability of the houses. I asked Mr. Lakshmi Saran, counsel for the appellant, to satisfy me upon the point whether on evidence on the record the judgment-debtor could be said to be an agriculturist within the meaning of Section 60, Civil P.C. Mr. Lakshmi Saran has frankly conceded that there is not sufficient evidence in support of his case upon this point. He has cited Gopalan Garu v. Gopala Krishnayya Garu ('27) 14 A.I.R. 1927 Mad. 342 and has urged that the chief means of livelihood of the judgment-debtor is the criterion for considering whether he is an agriculturist within the meaning of Section 60, Civil P.C. He has urged that the position, was not properly appreciated by the Courts below and, therefore, the case should be sent back for rehearing. I am not disposed to accede to this request. In the first place, I am not satisfied that there was any misapprehension as regards the true meaning of the word "agriculturist" in the Courts below. Secondly, it is not necessary to go into this matter as the judgment of the lower appellate Court proceeds upon the ground that the judgment-debtor was estopped from raising the question that he was an agriculturist within the meaning of Section 60, Civil P.C., by reason of the consent order, dated 10th April 1937 and as, in my opinion, the view taken by the lower appellate Court is correct.
3. The case in Uzir Biswas v. Hardeo Das ('20) 7 A.I.R. 1920 Cal. 424 is directly in point. In that ease, the parties, entered into a compromise by which the judgment-debtor agreed that the amount claimed would be paid in certain instalments by him and that on default the creditor would be entitled to realise the same from movable and immovable properties of the judgment-debtor and from his person, and that the property attached would remain charged for the decretal amount. Among the properties in question, in that case were the dwelling houses of the judgment-debtor who was an agriculturist. On the basis of the compromise a decree was passed by the Court and it was put into execution by the decree-holder by attachment and sale of those properties. Thereupon the judgment-debtor raised an objection that the properties could not be attached and sold. Their Lordships of the Calcutta High Court were of the opinion that the consent decree was binding upon the judgment-debtor and the properties which were objected to as being non-transferable were under the terms of the decree liable for satisfaction of the amount of the decree and, in the result, their Lordships upheld the contention of the decree-holder that the judgment-debtor was estopped from raising the objection that the properties were not saleable. To the same effect is the case in Ganga Bishun Ram Gajadhar Ram v. Jagamohan Ram ('27) 14 A.I.R. 1927 Pat. 254. In that case in the course of execution proceedings the judgment-debtor had entered into an agreement with the decree, holder that he should pay the amount of the decree by instalments and in security for the amount of the decree and costs he had declared that he had mortgaged his residential house. Their Lordships held that the house of an agriculturist was not absolutely unsaleable and although Section 60(1), Clause (c), Civil P.C., provided that it shall not be liable to attachment or sale, yet the judgment-debtor could waive this privilege and sell the house of his own free will. Their Lordships further held that the compromise made in the earlier execution proceedings in that case estopped the judgment-debtor from pleading that the house was not saleable. The aforesaid decision of the Calcutta High Court in Uzir Biswas v. Hardeo Das ('20) 7 A.I.R. 1920 Cal. 424 was approved. With respect, I follow the view taken by the Calcutta and the Patna High Courts in these two cases and, in my opinion, the judgment of the lower appellate Court upon this point is correct. Reference was also made by learned Counsel for the respondent to the Full Bench decisions of this Court reported in Bhola Nath v. Mt. Kishori ('12) 34 All. 25 and Mubaradk Husain v. Ahmad ('24) 11 A.I.R. 1924 All. 328. In the former case, it was held that Section 60, Civil P.C., will not operate to bar the sale of a house belonging to an agriculturist in execution of a decree on a mortgage of the same if such house is not an appurtenance of the mortgagor's holding which he is prohibited by law from mortgaging or transfer. In the latter case, their Lordships held the view that Proviso (c) to Section 60(1), Civil P.C., deals with sales held in execution of decrees in which a previous attachment is necessary, i.e., sales held in execution of simple money decrees and it does not apply to sales in pursuance of mortgaged decrees, decrees directing sale of the mortgaged property and that where an agriculturist mortgages his house and a decree for sale of the same is given, the house may be sold in execution of that decree. In my opinion, the principle of these decisions also supports the view taken by the lower Court. What is the chief source of the livelihood of a judgment-debtor is essentially a question of fact and upon the solution of this question depends the answer to the question whether he is an agriculturist within the meaning of Section 60(1), Clause (c), Civil P.C. or not. Therefore if a judgment-debtor enters into a compromise with the decree-holder upon the footing that the property in question is liable to be sold he is, in effect, making a representation that he is not an agriculturist and that the property is saleable and after the compromise it is not open to him to resile from that position and urge that the property in question is not saleable. The same result would follow in a case where a statement is made solemnly before the Court that the property might be sold in certain eventualities and acting upon that statement the Court passes an order or a decree. Learned Counsel for the appellant made reference to the Privy Council decision in Raghuraj singh v. Hari Kishan Das ('44) 31 A.I.R. 1944 P.C. 35. That case arose under the Agriculturists' Relief Act and in my opinion, it has no bearing upon the present case, nor do the cases reported in Shri Nath v. Puran Mal ('42) 29 A.I.R. 1942 All. 19 and Mohammad Moshin v. Mohd. Mohtas ('45) 32 A.I.R. 1945 All. 281 which have been relied upon by learned Counsel for the appellant, afford any assistance in the present case. In my opinion, there is no force in this appeal and I dismiss it with costs.
4. Mr. Lakshmi Saran has prayed for leave to appeal under the Letters Patent and it is refused.
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Mahadeo Agrahri vs Dhaunkal Mal


High Court Of Judicature at Allahabad

11 December, 1945