The Collector of Satara vs Mahadu Raghu Kadam

Fawcett, J.—The point that has been referred to us by the Subordinate Judge is, whether, in view of Section 22 of the Dekkhan Agriculturists'' Relief Act, the Immovable property of an agriculturist can be attached and sold in execution of an order passed u/s 386 of the Criminal Procedure Code, as amended in 1928. In my opinion, the answer should be in the affirmative. Section 386, Sub-section (3), Criminal Procedure Code, only applied the provisions of the CPC as to execution of decrees, and there is nothing in the Code itself which involves the application of Section 22 of the Dekkhan Agriculturists'' Relief Act. The claim to the benefit of that section is one which can only be made by the judgment-debtor himself on the ground that he is an agriculturist, and it is not a claim or objection that would fall under the provisions of Order XXI, Rules 97 to 103, of the Civil Procedure Code. The argument, however, that, inasmuch as the warrant in to be deemed to be a decree under the sub-section, the provisions of Section 22 of the Dekkhan Agriculturists'' Relief Act apply if so facto, is one that requires serious consideration. The section itself extends to Immovable property belonging to an agriculturist which it is proposed to attach or sell "in execution of any decree or order passed whether before or after this Act came into force," and it is contended that this, therefore, applies to what u/s 386, Sub-section (3), is deemed to be a decree. Obviously, the section mainly has reference to decrees which are passed in the ordinary way in suits to which an agriculturist is a party, falling under the Dekkhan Agriculturists'' Relief Act; and, in my opinion, the mere fact that the warrant is executable as if it were a decree does not suffice to make the provisions of s. 22 of the Dekkhan Agriculturists'' Relief Act applicable to such a warrant. In support of this, I would refer to the case of Shivayagappa v. Govindappa I.L.R (1913) . 37 Bom. 614here had been eases in which this Court held that, if there was a compromise decree containing a provision to the effect that, on default of payment of so many instalments, the whole mortgaged property should be liable to sale, such compromise decree contravened the provisions of Section 15-B of the Dekkhan Agriculturists'' Relief Act, and woe, therefore, void : see, for instance, Kishandas Shivram Marwadi v. Nama Rama Vir ILR (1910) 35 Bom. 190. The question, however, was subsequently referred to a Full Bench, and the latter held that a compromise in a suit, which came under the Dekkhan Agriculturists'' Relief Act, was not bad in law because it was made without compliance with the special provisions (Section 15-B) of that Act. In the course of his judgment, Scott C.J., referring to Section 15-B, says (p. 620) :-

There is nothing to show that the Legislature intended that the provisions of that section should be applied by analogy wherever a compromise is entered into, which is to be recorded by the Court and to form the basis of a consent decree, As Mr. Justice West observed in Gangadhar Sakharam v. Mahadu Santaji ILR (1883) 8 Bom. 20 it is a general principle ''that exceptional provisions are not to receive a development to all their logical consequences contrary to the general principles of the law.'' Here we are asked to extend by analogy the provisions of a special section contrary to the general principles expressed in Order 23, Rule 3. A compromise which is made by parties who are sui juris should be given effect to. We do not think that there is anything unlawful in the compromise or contrary to public policy.

I think that the principle expressed by West J. applies in the present case, and the Court will not be justified in saying that because a warrant u/s 386, Sub-section (3), is to be deemed a decree, therefore, the exceptional provisions of Section 22 of the Dekkhan Agriculturists'' Relief Act must be held applicable to such a warrant. I may also refer to a case which came before me as Judicial Commissioner in Sind. It was one in which an award had been passed in favour of persons who sought to have the Immovable property of the debtors sold in execution of the award. The debtors raised the objection that they were agriculturists and that the Immovable property was exempt from attachment and sale u/s 22 of the Dekkhan Agriculturists'' Relief Act. I held that an application to execute an award could not be deemed to be an application in execution of an order u/s 22 of the Dekkhan Agriculturists'' Relief Act. I considered that when Section 22 spoke of "an order" the words must be read with the preceding words "in execution of", and, so read, they mast be limited to an order capable of execution in the ordinary way. And, accordingly, I thought that an application to execute the award could not be deemed to be an application "in execution of an order" within the meaning of Section 22 of the Dekkhan Agriculturists" Relief Act : Udhowdas v. Ukamal (1920) 14 Sind L.R. 217 I think, therefore, that the warrant in this case is executable by attachment and sale of the Immovable property in question, in spite of the fact that Mahadu, who was fined, is an agriculturist,

Madgavkar, J.

I agree. The answer to the reference is, in ray opinion, in the affirmative, as the Immovable property can be attached. The warrant of fine of a criminal Court, issued u/s 385 (3), Criminal Procedure Code, when sent to the Collector, is to be deemed to be a decree, and the Collector to be deemed to be the decree holder for the purpose of execution under the Code of Civil Procedure. It does not, therefore, follow that a warrant is a decree or an order within the meaning of Section 22 of the Dekkhan Agriculturists'' Relief Act. Section 886 (3) merely provides a means for execution of a warrant of fine through a civil Court. It remains as a warrant of a criminal Court and does not become a decree of the civil Court to which the Dekkhan Agriculturists'' Relief Act in general, or Section 22 in particular, would apply. The answer to the reference should, therefore, be in the affirmative.

Per curiam, A copy of our judgments should be sent under the signature of the Registrar to the Court by which the reference was made.

The costs of the reference, under Order XLVI, Rule 4, to be posts in the cause.