Gajendragadkar, J. -
(1.)THESE appeals arise in execution proceedings and raise a short question as to the denotation of the word "agriculturist" used in Clauses (b) and (c) of the proviso to Section 60 (1) of the Code of Civil Procedure, 1908. The decree under execution was passed in Civil Suit No.685 of 1936 and the darkhasts giving rise to these appeals had been filed by the decree-holder to recover the amount of costs by attachment and sale of the house of the judgment-debtor. This claim was resisted by the judgment-debtor on the ground that the house sought to be attached was exempt from attachment under Clause (c) of the proviso to Section 60 (1) of the Code of Civil Procedure. After raising this plea in the written statement the judgment-debtor took no further steps to substantiate his plea by leading any evidence. In fact, on the next date of hearing he remained absent. Thereupon the learned Judge proceeded to make an order directing the attachment and sale of the house as prayed for by the decree-holder. When a warrant for sale was issued in due course in pursuance of this order, the judgment-debtor appeared and renewed his contention that the house was exempt from attachment and sale. On this occasion evidence was led by the judgment-debtor in support of his plea. The learned Judge was satisfied that the house did belong to an agriculturist as provided by Section 60 of the Code and was as such exempt from attachment and sale. He was, however, inclined to take the view that the judgment-debtor was precluded from raising this plea at this late stage. In other words his view was that having regard to the earlier order for attachment and sale of this house, the plea now raised by the judgment-debtor was barred by res judicata. On that view he directed that further proceedings to sell the house should follow. Against this order the judgment-debtor went in appeal. The appellate Court held that the plea raised by him cannot properly be regarded as barred by res judicata. On the merits the finding of the appellate Judge was that the judgment-debtor was an agriculturist and the house sought to be attached and sold was exempt from attachment under Section 60 of the Code. That being his view, he allowed the appeals and dismissed the darkhasts with costs. It is against these orders that the decree-holder has filed the two second appeals.
(2.)FOR the appellant Mr. Padhye has contended that the lower appellate Court was wrong in holding that the judgment-debtor's plea was not barred by res judicata. We are unable to accept this contention. It is true that the general principle of res judicata applies to orders passed in execution proceedings; but it is well settled that the doctrine of constructive res judicata as enunciated in Explanation IV to Section 11 should be applied to execution proceedings with great caution. In the present case we are unable to hold that the learned appellate Judge was wrong in taking the view that the plea raised by the judgment-debtor was not barred by constructive res judicata.
Mr. Padhye has further contended that the finding of the lower appellate Court that the judgment-debtor is an agriculturist is erroneous in law since in making the said finding the lower appellate Court has failed to appreciate properly the meaning of the word "agriculturist" as used in Section 60 of the Code. The lower appellate Court has found that the judgment-debtor's income from agricultural sources exceeds his income from non-agricultural sources and has held that a person whose agricultural income exceeds his non-agricultural income must be deemed to be an agriculturist within the meaning of Section 60 of the Code. Mr. Padhye contends that this view is wrong in law. I think Mr. Padhye's contention is well-founded and must be accepted.
Section 60 (1) of the Code of Civil Procedure mentions property which is liable to attachment and sale in execution of a decree. In the list of properties thus mentioned are included houses or other buildings. The proviso to Section 60 (1) deals with particulars which are not liable to such attachment and sale. Clause (b) of the said proviso exempts from attachment and sale tools of artizans, and where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such. Similarly, Clause (c) exempts houses and other buildings belonging to an agriculturist and occupied by him. The word "agriculturist" is not defined in the Code. Its dictionary meaning is "a professional cultivator or a tiller of the land. " It is obvious that the word "agriculturist" must be given the same meaning in Clauses (b) and (c): Clause (b) refers to the agriculturist's implements of husbandry and his cattle and seed-grain which would be necessary to enable him to earn his livelihood as an agriculturist, Prima facie the word "agriculturist" used in this clause must denote a person who actually cultivates the land. It seems to me that it would be unreasonable to hold that a person who does not himself cultivate his lands, but gets them cultivated by his servants, could be deemed to be an agriculturist within the meaning of Clause (b ). An agriculturist contemplated in the said clause must have his own implements of husbandry and should be able to show that his cattle and seed-grain are necessary to enable him to earn his livelihood as such. If a person who gets his fields cultivated by his servants supplies his servants with agricultural implements, I apprehend that such implements may not attract the protection of this clause. On the contrary, if such servants use their own implements in cultivating the fields in quesion, I think the servants would be regarded as agriculturists and their implements would not be liable to attachment and sale. Clause (c) exempts houses belonging to agriculturists and occupied by them. Prima facie the houses which are intended to be exempted should be farm houses belonging to agriculturists and occupied by them as such agriculturists for the purpose of carrying on their agricultural operations. It is clear, I think, that if an agriculturist owns a house of residence far away from his agricultural fields, it would not be open to him to claim for such a house exemption from attachment and sale, because it could not be said that such a house is occupied by him as an agriculturist. I am therefore inclined to take the view that the word "agriculturist" as used in Clauses (b) and (c) of the proviso to Section 60 (1) denotes small holders who till the land and cultivate it, and cannot include large landed proprietors even though they may be tilling the land and cultivating it through their servants. The scheme of the proviso seems to suggest that the protection given by Clauses (b) and (c) should be confined to persons who are personally engaged in tilling and cultivating the land and whose livelihood depends upon the proceeds derived from such tillage and cultivation of the soil.
(3.)IT is true that under the Dekkhan Agriculturists' Relief Act the word "agriculturist" has a somewhat wider denotation. Under Section 2 of the said Act the word "agriculturist" includes persons who by themselves or by their servants or their tenants earn their livelihood wholly or principally by agriculture. Under the said definition persons who actually cultivate their lands as well as those who cultivate their lands through their servants or tenants are entitled to claim the status of an agriculturist. That is why while dealing with cases of persons falling under this latter class it is often necessary to consider the question as to whether the agricultural income of the persons concerned exceeds their non-agricultural income. If it is shown that it does, the said persons are entitled to claim that they earn their livelihood principally by agriculture. The lower appellate Court has applied this artificial definition of the word "agriculturist" while deciding the status of the judgment-debtor under Section 60 of the Code. IT seems to me, however, that having regard to the object with which certain particulars have been exempted from attachment and sale under the proviso to Section 60 (1) in dealing with the plea of status under the said section, the application of the artificial definition of the word "agriculturist" contained in Section 2 of the Dekkhan Agriculturists' Relief Act is not justified.
Though this precise question does not appear to have been decided in any reported judgment of this Court, the scope of the provisions contained in the proviso to Section 60 (1) and the object of providing protection to the agriculturists has been discussed by this Court on several occasions. In Radhakisan Hakumji v. Balvant Ramji (1883) I. L. R. 7 Bom. 530 while dealing with the expression "materials of houses and other buildings belonging to, and occupied by agriculturists", which occurred in Section 266, Clause (c), of the Code of 1882, it was held by this Court that the said expression "is intended to exempt from attachment and sale the house dwelt by an agriculturist as such, and the farm buildings appended to such dwelling. " It was observed that the said expression cannot include other houses, which in one sense may be occupied, since what is meant is a physical occupation, by an owner, of his house as a dwelling appropriate or convenient for his calling of agriculture. In Jivan Bhaga v. Hira Bhaji (1887) I. L. R. 12 Bom. 363, in execution of a decree passed against B, who was a bhagdar, the decree-holder attached B's bhag, including the gaohan or site upon which B's house was built. B contended that the gabhan was exempt from attachment and sale on the ground that he was an agriculturist and that the gabhan of his house was protected by Clause (c) of Section 266. His contention was negatived on the ground that B did not hold the gabhan as an agriculturist. The said gabhan and the house were a part of the bhag and they were in his occupation as a bhagdar. West J. observed that the protection of Section 266, Clause (c), of the Civil Procedure Code, was intended for a person who is an agriculturist "in the strictest sense, and for an agriculturist in that sole character. " In Devare Hegde v. Vaikunt Subaya (1917) I. L. R. 41 Bom. 475, s. c. 19 Bom. L. R. 281 it was held that the term "agriculturist" as used in Section 60 of the Code should be held to include persons engaged in cultivating the soil for remuneration although they may have no proprietary interest in the soil. Scott C. J. referred to the dictionary meaning of the word "agriculturist" as including a professed cultivator of the land or a farmer, and observed (p. 478): A person who earns his livelihood by tilling the soil can hardly be said not to be a professed cultivator of the land.