Sharma, J. - (1.) THIS, is a judgment-debtor's second appeal and arises out of execution proceedings.
(2.) A decree was obtained against the appellant and his father Budha Lal by one Chaturbhuj for the recovery of Rs. 4400/- in Kotah State and it was subsequently transferred to the respondent. Before the present execution application was filed, the decree was last executed in the year 1936. Some objections were raised on behalf of the judgment-debtor that he was an agriculturist and that the property attached could not be taken in execution by virtue of sec. 60 of the Civil Procedure Code. This objection was disallowed, but the decree holder himself exempted a nohra from attachment. Thereafter the file was consigned to record room. The present application was filed on the 7th of July, 1945. According to the law of limitation prevailing in Kotah State before December, 1v42, the limitation for filing an execution application was six year from the date of the decree or in case there had been a previous execution; six years from the date of such application for execution. In December, 1942, however, Indian Limitation Act, with certain modifications which are not relevant for the purposes of this case, was applied to Kotah State by the resolution of State Council No. 71 dated the 17th December, 1942, It was published in the Kotah State Gazette dated the 1st January, 1943, and was to come into force from the first of the next month after publication in the Gazette. Thus after the coming into force of the said resolution the period of limitation for the execution of decrees was cut down to three years from the date of the final order on a previous execution application, if any, It was. however, provided that in cases where the consequence of the application of the new law would be to bar the proceedings by limitation at once or within one year from the date of the enforcement of the new law, proceedings taken within one year from the date of enforcement of new law would not be considered to be time barred. As the present application for execution was made on the 7th of July, 1945, it was apparently time barred in accordance with the aforesaid resolution. The decree-holder, however, tried to bring his application for execution within limitation by virtue of the resolution No. 58 of 1941-42 of the Kotah State Council dated the 27th May, 1942. According to this resolution, the execution of decrees against cultivators and State servants drawing more than Rs. 20/- P. M. in the whole State was suspended upto the 22nd of Dec, 1942, This resolution was published in the Kotah State Gazette dated the 1st June, 1942, at page 3. Thereafter, by resolution No. 7 of 1942-43 published in Kotah State Gazette dated 1st November, 1942, the period of suspension was extended upto 20th February, 1943. If, therefore, these two resolutions were to apply to the present case, the present execution application will be within time. The judgment-debtor raised an objection that the decree was time barred and that he was not an agriculturist or cultivator within the meaning of the Resolutions, No. 58 of 41-42 or No. 7 of 42-43. The court of first instance allowed the judgment-debtor's objection and dismissed the application for execution as time barred. The decree-holders went in appeal to the court of the District Judge, Kotah and the appeal was allowed and the case remanded to the first court with a direction that it might be decided after recording the evidence of the parties as to whether agriculture was the main source of livelihood of the judgment-debtor. On remand the decree-holder contended himself only with filing certified copies of certain khatas. The judgment-debtor examined himself and four other witnesses and relied upon an order of the execution court on his objection in the year 1936, The first court held that it was hot proved that the judgment-debtor's main source of livelihood was agriculture. His objection was, therefore again allowed and execution application dismissed as time barred. On appeal the District Judge,kotah District, has reversed the order of the first court and has held that the judgment-debtor Was an agriculturist within the meaning of the Resolutions Nos. 58 of 1941-42 and 7 of 1942-43. Against this judgment and order of the learned District Judge, the judgment debtor has come in second appeal to this Court. It has been argued by Mr. P. N. Datta on behalf of the appellant that there was absolutely no legal evidence to prove that the main source of the judgment debtor's livelihood was agriculture. The learned District Judge has acted upon certain un-proved and inadmissible pieces of evidence in order to come to a finding that the appellant's main source of livelihood was agriculture. On behalf of the decree-holder it was argued that in Kotah State Evidence Act as such did not apply and the learned District Judge was entitled to refer to certain documentary evidence which was reliable although strictly speaking it might not have been acted upon in places where the Indian Evidence Act applies. He further read out the order on the objection of 1936 to show that the judgment-debtor himself had objection to the execution of the decree on the ground of being an agriculturist and that certain portion of attached property was release from attachment on this ground. A number of authorities of various High Courts have been cited on behalf of each party in order to show what is meant by the term agriculturist within the meaning of sec. 60 of the Civil Procedure Code. As I have not to deal with sec. 60 of the Civil Procedure Code in this case, therefore, it is not necessary for me to go into the interpretation of the word agriculturist by different High Courts within the meaning of sec. 60 of the Civil Procedure Code. The word used in the two resolution referred to above is, cuitivators,and not 'agriculturist'. The word 'cultivate' according to Chamber's Twentieth Century Dictionary means "to till or Produce by tillage"; "to prepare for crops". Cultivator, therefore, means a person who tills or produces by tillage or prepare for crops. The main thing therefore, that has got to be seen is whether the judgment debtor tills any land or prepares it for crops. So far as the judgment-debtor's evidence is concerned, he swears that he does not cultivate any land. On behalf of the decree-holder, no evidence had been produced excepting,that certain copies from khatas have been filed. These copies only show that certain land is recorded in the name of the judgment-debtor. The judgment-debtor swears that he does not till this land, but that other persons do it. The main reliance of the learned District Judge is on certain admissions made by the judgment-debtor in connection with previous execution application. No certified copies of these so called admissions were filed on behalf of the decree-holder If the decree-holder wanted to rely upon these admissions, it was his duty to file certified copies of these documents and to prove them in case they were not admitted by the judgment-debtor. This has not been done. It is not quite fair to rely upon papers on the court files unless they are duly tendered in evidence by the party which wanted to rely upon them and the other party had notice that they are going to be relied upon as evidence. The Evidence Act as such may not have been in force in Kotah State at the time use was made of these documents but the principles of law of evidence applied and nothing ought to have been done which would take one of the parties unawares or could hit him in the back. I am, therefore, not at all impressed with the use of such documents by the learned District Judge in evidence. The only evidence therefore, on which this Court can act is the evidence which has been produced in this case in accordance with law and as has been said above there is no evidence whatsoever to show that the judgment-debtor actually cultivates and land. It was argued that the copy of the order in the objection proceedings of 1936 filed by the judgment-debtor himself in this case shows that he put himself forward as agriculturist and some property of his was released from attachment in consequence. It is true that the judgment-debtor alleged himself to be an agriculturist in these proceedings, but objection was repelled by the court A part of attached property was released at the instance of the decree holder himself and not because the judgment-debtor was found to be an agriculturist by the court. It was argued by the learned counsel for the decree holder that the resolutions of the council were in Hindi and not in English and the word used was kashtkar and not "cultivator" Taking it to be so it has got to be seen in what sense the word kashtkar was used in the council resolutions. My attend on has been very faintly drawn to sec. 30 Exception 3 of the Un-repealed Civil Hidayats of Kotah State by the learned counsel for the decree holder. Sec. 30 lays down the procedure to be applied for the suspension of execution of decrees against kashtkars in certain cases. Exception 3 lays down that those persons whose main source of livelihood was shopkeeping, taking of contracts etc. but only nominally carried on cultivation i. e. , whose greater part of income came from some other business would not be entitled to the benefits of suspension. Further on, it has been made clear in this exception that the word kashtkar in this context meant a in person whose chief source of livelihood was kashtkari. The two resolutions which have been referred to above were based upon sec. 30 of the aforesaid Un-repealed Hidayats Civil of Department. I would, therefore, not be unjustified if I take the interpretation of the word kashtkar given in Exception 3 of sec. 30 to be the correct interpretation in this context. If the decree-holder wanted to get the benefit of the two resolutions, it was his duty to have proved that the chief occupation of the judgment-debtor was kashtkari and that it was the main source of his livelihood. As has been said above, he has failed to prove it. The mere fact that certain land is recorded in the name of the judgment-debtor does not make him a kashtkar within the meaning of sec. 30 of the Un-repealed Hidayats of Civil Department of Kotah State. The decree holder, therefore, failed to prove that he was entitled to the benefit of suspension. The appeal is allowed, the judgment and other of the first appellate court are set aside and those of first court restored. In the result the objection of the judgment-debtor is allowed and the execution application is dismissed as time barred. The appellant judgment-debtor shall get his costs of all the courts from the decree-holder. .;