John Beaumont, Kt., C.J.
1. This is a first appeal in execution from a judgment of the First Class Subordinate Judge of Sholapur. The appeal originally came before me, but I directed it to be heard by a bench of three Judges, because I felt doubtful whether the decision in Rudrappa v. Chanbasappa (1923) 26 Bom. L.R. 153, on which the learned advocate for the appellants relied, was rightly decided. On the present occasion further authorities have been referred to. The point which arises is a very short one and is this : Where a decree has been passed ex parte in a mortgage suit for sale of the mortgaged property and payment of the proceeds to the mortgagee, is the defendant entitled in execution to set up his status as an agriculturist and to ask for a modification of the decree by directing payment by instalments, and consequential alterations in the order for sale
2. The facts of the case are quite short. The suit is a suit on a mortgage bond and the preliminary decree was made ex parte on September 21, 1932, and on October 4, 1933, the final decree was made ex parte by which it was directed that the plaintiff do recover a sum of Rs. 9,934-4-0 and certain further sums, costs and interest, and that the mortgaged property mentioned in the preliminary decree be sold and that the proceeds of sale be paid into Court and dealt with by discharging the amount due under the preliminary decree. The present darkhast was filed on February 13, 1934, and it is on that darkhast that the defendant claimed to be held as an agriculturist. The learned Subordinate Judge dismissed the application holding that he could not go behind the decree for sale. As the decrees have not been set aside, no significance attaches to the fact that they were made ex parte.
3. Dealing with the matter, apart from authority, I should have thought that the order of the learned Judge was clearly right, it is a very well-settled principle that an execution Court cannot go behind the decree which it is called upon to execute, unless of course the legislature has authorised it to do so; but we should have to find clear words of authority to justify us in holding that the execution Court can go behind the decree. The section relied on in this case as conferring such authority is Section 15B of the Dekkhan Agriculturists' Relief Act. I may point out that Section 20 of that Act is an instance of legislative authority under which the execution Court can go behind the decree; but that section has been held to apply only to decrees in money suits, in which in execution the defendant may give evidence that he is an agriculturist. Section 15B deals with decrees in suits falling within Section 3, Clause (y) or Clause (2), and this suit falls, I think, clearly within Section 3, Clause (y), because it is a suit for the sale of property in which the defendant is an agriculturist. I am of course assuming that the defendant proves that he is an agriculturist; if he fails in that, no question arises. The section provides that the Court, in passing a decree for redemption, foreclosure or sale in a suit covered by the Act, or in the course of any proceedings under a decree for redemption, foreclosure or sale passed in any such suit, may direct that any amount payable by the mortgagor under that decree shall be payable in such instalments, on such dates and on such terms as to the payment of interest, and where the mortgagee is in possession, as to the appropriation of the profits and accounting therefor, as it thinks fit. The section is not very well drafted. In terms, it only applies, (so far as relates to cases of sale), to a decree for sale) or a decree made in the course of proceedings made under the decree for sale. Strictly speaking the only decree for sale is the final decree, but taking the section as a whole, I have no doubt that it would enable an order for instalments to be made at any time up to the final decree. The question, however, is whether after the final decree for sale an order for payment by instalments can be made in execution. If it were merely a question of altering the decree from one for payment in a lump-sum into one for payment by instalments,, there would be no great difficulty. But it is plain that if the execution Court comes to the conclusion that the defendant is an agriculturist and makes an order for payment by instalments, it must go on to provide that the decree for sale is not to be executed according to its terms but is only to be executed in default of payment by instalments. Whether the default is to be in payment of one or more instalments and how much grace is to be allowed are matters which will have to be dealt with in the order. The absence from the section of any directions enabling the execution Court to modify the order for sale and draft a new order directing sale only in default of instalments, satisfies me that the section was never intended to give to an execution Court any power to direct payment by instalments after the decree absolute. That is the construction which I should put on the section if the matter were free from authority, but it is not so free.
4. We have been referred to many cases; but the only one to which I wish to refer in any detail is the case of Mancherji v. Thakordas I.L.R. (1906) 31 Bom. 120 : 8 Bom. L.R. 963. In that case it was undoubtedly held that after a decree absolute for sale the Judge in execution could go into the question under Section 15B whether the decretal amount should be paid by instalments. Mr. Justice Russell did not notice the difficulty which the decision involved, authorising the executing Court to set aside and redraft the decree which it was supposed to be executing, but merely dealt with the question whether the decree referred to in Section 15B was the decree nisi, or the decree nisi and decree absolute, and he held that both decrees were referred to in the section. With that part of the decision I agree. Mr. Justice Beaman did to some extent notice the difficulty to which I have referred and he gave, if I may say so, what seem to me to be cogent reasons for deciding the case in the opposite sense to that in which he did decide it. He refers to an order for foreclosure and appears to admit that in the case of such an order it would be impossible to authorise the executing Court virtually to amend the order by granting a decree for payment by instalments. But he draws a distinction between the case of a decree absolute for sale and a decree for foreclosure for which I can find no justification in the section, It appears to me that, under an order for sale, to allow the money to be paid by instalments in effect annuls the order for sale in default of payment of a lump sum. I myself should have decided that case in the opposite sense to that in which it was decided, but we cannot ignore the fact that the case was decided as long ago as 1906. It has stood for nearly thirty years and does not appear to have been criticised. I have no doubt that many orders have been made, and sales have taken place, under the aegis of that authority, and I think we should not be justified at this distance of time in overruling it.
5. The other cases which have been referred to do not present the same difficulty. The case of Rudrappa V. Chanbasappa, on which reliance is placed, purports to be a decision under Section 15B of the Dekkhan Agriculturists' Relief Act, and if it were a decision under Section 15B, it would no doubt be in favour of the present appellants' contention. But we sent for the record from which it appears that the suit was one on a promissory-note, and was, therefore, a suit which fell under Section 20 of the Act, and to which Section 15B had no application. This fact seems to have been lost sight of by the learned Judges who decided it. The case of Shidraj v. Renaki : (1925)27BOMLR1490 follows the case of Rudrappa v. Chanbasappa, and is also a case of a money decree. In my opinion none of the other cases cited have any real bearing on the point before us, and the conclusion I reach is that we ought to follow Mancherji v. Thakordas, whether we agree or not with the decision.
6. We therefore allow this appeal and refer the matter back to the trial Court to deal with the question whether the defendant was an agriculturist at the material date on the merits, and to make an appropriate order according to its finding. Costs to be costs in the cause.
N.J. Wadia, J.
7. I agree. The question raised in this appeal is another example of the difficulties created by the loose and unsatisfactory wording of the Dekkhan Agriculturists' Relief Act. It is not easy to say from the language of Section 15B whether it was the intention of the legislature to give power to the Court to direct instalments even after a decree absolute for sale. The difficulties created by such an interpretation are obvious and were cogently pointed out by Mr. Justice Beaman in his judgment in Mancherji V. Thakordas : (1906)8BOMLR963 . The section does not expressly empower the Court to go behind the decree as Section 20 does. On the other hand it is difficult to say, without doing some violence to the language of the section, that the decree for sale referred to in it does not include a decree absolute as much as a decree nisi. The interpretation put upon the section in Mancherji V. Thakordas is one which has been accepted now for thirty years, and I agree with my Lord the Chief Justice that it would be difficult for us to differ from that view without living rise to considerable difficulty. I agree, therefore, that the appeal must be allowed.
Divatia, J.
8. This case affords one more illustration of the oft-repeated criticism that the Dekkhan Agriculturists' Relief Act is a badly drafted statute. At various places in the Act, the legislature has used language which has landed the Courts in great difficulty in construing the sections and in finding out the intention of the legislature.
9. In this case the phrase that has to be construed is : 'in the course of any proceedings under a decree for redemption, foreclosure or sale passed in any such suit' in Section 15B of the Act. Sections 20, 21 and 22 of the Act have been enacted in order to give certain benefits to agriculturists about grant of instalments, exemption from arrest as well as attachment even for the first time in execution proceedings. Section 20, which deals with the grant of instalments, has been construed as limited only to decrees in money suits, and it was, therefore, probably thought advisable to amend the Act by enacting Section 15B, so as to grant the benefit to agriculturists of paying off a mortgage decree by instalments in certain cases. With regard to the grant of instalments before or at the time of passing a final decree, there is no difficulty; but if it was the intention of the legislature that agriculturists should get a similar benefit even in execution after a final decree for redemption, foreclosure or sale was passed, it is expressed in language which is not free from doubt and difficulty. It is difficult to understand how the question about grant of instalments would arise after the passing of a final decree for foreclosure, and even with regard to such a decree for sale, it is a question whether the legislature intended that instalments may be granted to a mortgagor at any stage in execution proceedings, even after the sale takes place and before the execution proceedings are finally disposed of.
10. I agree with the criticism, which my Lord the Chief Justice has just made of the case in Mancherji v. Thakordas I.L.R. (1906) 31 Bom. 120 : 8 Bom. L.R. 963. Mr. Justice Beaman tried to solve t by saying that the language of the section was advisedly loose and general. But the looseness of the language makes the task of the Court more difficult in applying the section. However, as the interpretation put in that case is favourable to agriculturists for whose relief the Act was passed, and as that decision has been apparently accepted for a long time, I agree that it should not be now disturbed. At the same time, I trust that this as well as other defects in the Act which have been pointed out by this Court from time to time, will receive the earnest attention of the legislature at no distant date.