This is an appeal against the judgment and decree of the learned Assistant Judge, Ahmedabad (Rural) at Narol allowing civil appeal No.70 of 1964 and setting aside the order passed by the learned Joint Civil Judge, Junior Division Dholka.

2. The facts giving rise to this appeal are simple. The present respondent had filed regular darkhast No.71 of 1963 against the present appellant in the court of the learned Joint Civil Judge, Junior Division, Dholka for executing a decree passed, against him and his mother who had since died in regular civil suit No.131 of 1949 for recovering decretal dues amounting to Rs.7929-81 paise by attachment and sale of immovable properties belonging to the deceased father of the judgment-debtor. The attached properties consisted of a house situated at Bavla, a small town in Dholka taluka, and two fields at village Sindhrej in the said taluka. The present appellant by his reply Ex.15 opposed the said application and contended inter alia that the present respondent had applied for rateable distribution in a previous darkhast wherein it was held that the present appellant was an agriculturist and that the house in dispute was exempt from attachment under Section 60(1), proviso (c) of the Code of Civil Procedure and that the appeal filed against that order was also dismissed. He therefore, contended that the present execution darkhast would be barred by res judicata. He also contended that the house in dispute was used for keeping bullocks and implements of husbandry, storing fodder and other agricultural purposes and that he had no other occupation save agriculture. The learned Civil Judge held that the house in dispute was exempt from attachment under proviso (c) of Section 60(1) of the Code of Civil Procedure. He held that there was no change in the status of the present appellant and therefore, he held that the order passed in the previous darkhast operated as a bar to the present respondent to agitate the same dispute again. Against, the said order, an appeal was preferred in the district court and the learned Assistant Judge who heard the appeal, allowed it and set aside the order passed by the learned Joint Civil Judge. Against the said order of the learned Assistant Judge, the original judgment debtor has preferred the present appeal to this court.

3. Mr. R.N. Shah, learned Advocate for the appellant submitted that the learned Assistant Judge had erred in holding that the present appellant was not an agriculturist within the meaning of sub-clauses (b) and (c) of proviso to Section 60 of the Code of Civil Procedure. He urged that in order to come within the definition of 'agriculturist' it was not necessary that the appellant should be cultivating the land personally and it would be sufficient to bring him within the definition of 'agriculturist' to show that his livelihood depended mainly on the income derived from the agriculture. He urged that once the house was said to be in occupation of an agriculturist, it would be exempt from attachment and sale under a decree of the court. Lastly, he urged that the present execution application would be barred by the principles of res judicata as in the previous application, it was held that the present appellant was an agriculturist and that the house was exempt from attachment and sale. In order to appreciate the contentions raised by the learned Advocate for the appellant it would be worthwhile to consider the proved facts of this case. Admittedly, the present appellant was a minor at the time the darkhast in question was filed against him by the judgment creditor. At the time of the first darkhast the present appellant was represented by his mother who acted as his guardian and was also impleaded as a party as a legal representative of the original judgment debtor Somabhai. The mother died after the decree was passed. The present darkhast therefore was filed against the present appellant. The learned Judge below has observed:-

"There is no dou