H. N. TILHARI, J. ( 1 ) THIS revision application under Section 115 of the CPC arises from the judgment and order dated 4-8-1994 passed by the Hon,ble Civil judge B. Kalyan in Execution Petition No. 8 of 1993 rejecting LA. I. filed by the judgment-debtor wherein he prayed for release of tractor on the ground that attachment was wrongly made. The Court rejected the application. While rejecting the application, the Trial Court held that executable decree was passed on 30-3-1988. No doubt preliminary decree has been passed on 7-1-1986 and final decree could only be passed on 30-3-1988. As such, the execution petition had been filed within two years from the date of decree and therefore under Rule 22 it was not necessary to issue a notice. It further held that the judgment-debtor had sufficient knowledge of issue of warrant of sale. The Court below also held that the tractor in question was attached from the custody of one ramakrishna, Manager, Earth-movers Company in Bhalki Taluk and therefore it held that the txactor in question was engaged in contract work. Feeling aggrieved from the aforesaid order of the Execution Court rejecting the application moved under Section 151, the judgment debtors have come up in revision before this Court. ( 2 ) ORDINARILY, the order passed under Section 151 is neither appealable nor revisable. It could be revised only if it is shown that order under section 151 suffers from any jurisdictional error. Learned Counsel for the petitioner submitted that the tractor in question which was attached was an implement of an agriculturist. He made a reference to Section 61 of the CPC and on that basis contended that it could not be attached. This contention of the learned Counsel for the revision petitioner is based on misconception. Section 61 of the CPC deals with the question of partial exemption of agricultural produces. He made a reference to Section 61 of the CPC and on that basis contended that it could not be attached. This contention of the learned Counsel for the revision petitioner is based on misconception. Section 61 of the CPC deals with the question of partial exemption of agricultural produces. It provides that the State government may, by special or general order published in the Official gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing, until the next harvest, for the due cultivation of the land and for the support of the judgment debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempt from liability to attachment or sale in execution of a decree. This section, per se, does not deal with tractor or any agricultural implement. It only gives power to the State Government to notify partial exemption of certain agricultural produces from attachment. This section is of no help to the learned Counsel for the petitioner. Section 60 of the CPC deals with property liable to attachment and sale in execution of decree and it described such properties, as the properties which includes saleable property, movable or immovable, of the judgment-debtor, or over which, or the profits of which the judgment-debtor has disposing power with reference to either of the Articles referred to in section 60. Proviso to Section 60 reveals and mentions that particular properties referred in proviso are not liable for attachment or sale. Clause (b) of proviso reads as under:"tools of artisans and, where the judgment-debtor is ah 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, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section"in the case of Shrimant Appasaheb Tuljaram Desai and Others v bkalchandra Vithalrao Thube , their Lordships of the Supreme Court had occasion to consider Section 60 sub-section (1) as well as proviso to clauses (b) and (c) thereof. After referring to Oxford Dictionary, their lordships of the Supreme Court observed:"one of the meanings of the word "husbandry" is the business of husbandry, that is to say, a person who tills and cultivates the soil or a farmer. The same dictionary states that one of the meanings of the word "livelihood" is means of living, maintenance. It can also mean income, revenue, stipend. In the case of an agriculturist his implements of husbandry must therefore mean implements with which he tills the soil. These are saved from attachment. So far as his cattle and seed-grains are concerned, only that much is exempted which, in the opinion of the Court, would be necessary to enable him to earn his livelihood and by which he could earn his maintenance. It is to be noticed that under clause (b) the land which an agriculturist tills is not exempted from attachment. The agricultural produce of the land is exempted to the extent as notified in the Official Gazette issued under Section 61 of the Code. On a fair reading of the provisions of clause (b), that which is saved to an agriculturist are his implements with which he tills the soil and such cattle and seed-grain which, in the opinion of the court, are necessary for him to use in order to enable him to maintain himself. What their Lordships of the Supreme Court have emphasised in this paragraph is that those implements with which he tills the soil are exempted from attachment. A small farmer may till the soil by making use of bullocks and ordinary wooden ploughs. Section 60 is not limited in its scope only to a small farmer. A big farmer wholly dependant on the agricultural income may be using not ordinary implements but scientifically developed instruments in tilling the soil. Tractors may be used for the purpose of tilling. "agriculturist" has been defined by their Lordships of the Supreme Court as under:"it seems to us that even if it is not necessary that a person must till the land with his own hands to come within the meaning of the word "agriculturist" he must at least show that he was really dependent for his living on tilling the soil and was unable to maintain himself otherwise. A big farmer may be dependent on tilling the soil for his livelihood. A big farmer may be dependent on tilling the soil for his livelihood. No doubt, if a person has got other income, other than agriculture, then he may be said to be a person not dependent upon agriculture. Then he may not come within the term "agriculturist". There may be farmers solely dependent on the agriculture. In case if a farmer has big farm he may use modern techniques for tilling the soil like using instruments like tractor etc. , then as interpreted by their Lordships of the Supreme court, it may be said to be the implement with which he tills the soil. In such circumstances, it must be examined whether he is using modern mechanism for the purpose of tilling and if he is doing so and dependent on them, that big farms cannot be tilled otherwise than with scientific tools in a sense it would be more productive to provide him sufficient income, then why should not in such cases tractor be taken under section 60 (proviso) to be the instrument or implement of agriculturist. In the case of Dwaraka Prasad v Municipal Board, Meerut, a Division bench of the Allahabad High Court, had the occasion to consider this question. Their Lordships at page 562 observed:"upon a reading of clause (b) of proviso to Section 60 (1) of the code, we are of the view that the Court has to decide whether the particular implement sought to be attached is necessary to enable the judgment-debtor to earn his livelihood as such and if the Court is of the view that particular implement is so necessary to enable his livelihood to be earned as such, then that implement of husbandry must be protected from attachment". "in this particular case, it is evident that without tractor it would not be possible to run the farm and it is evident that if the farm is not run, the judgment-debtor will cease to earn his livelihood as an agriculturist. By use of this tractor he is no doubt enable to earn a substantial living but in our opinion, the substantial nature of income derived does not affect the question because we think that the livelihood which the Court should enable the judgment-debtor to maintain, is the livelihood which he was maintaining as such at the time when the attachment was sought. "learned Counsel urges that even though this tractor is attached, the agriculturist judgement-debtor can still perform the necessary agricultural operations by substitute implements. We do not see why we should force this agriculturist to go in for substitute implements of an inferior character when the law itself gives him the right to pursue his livelihood in the same manner as he was pursuing it before the attachment application was made with the help of his existing implements. We may note that it is not suggested that he has any other tractor". This Allahabad High Court's view does not by itself lays down that in every case the tractor may 6e taken to be an implement, but it has to be determined in the context of the facts and circumstances of the case that if there is a big farmer and he is tilling his land making use of the tractor, then it may come within the framework of implement with which he may be said to till the soil. This view of the Allahabad High court appears to be in consonance with the basic principles of law laid down by their Lordships in Appa Saheb's case, supra. It may be said that by general propositions', it cannot be said that tractor can be said to be an implement of agriculturist. It has to be looked into that whether at the time or before attachment the soil was tilled by the tractor and if that is so, then implement is saved from attachment. might be when we so hold, immediately we have to look to the immediate period prior to the date of attachment i. e. , the tilling period. If during the tilling period immediately before the attachment, the land was being tilled by the tractor and the Court is satisfied on the evidence, then definitely it may be saved from attachment under Section 60 proviso (b ). But if the farmer was having tractor, but he is not using it for agriculture, but for other purposes, then it may not come within the expression "implement for agriculture". So this question has to be determined by the execution court by framing necessary issues and hearing the parties. It cannot be decided one way or the other without trying or examining such issue or the case. So this question has to be determined by the execution court by framing necessary issues and hearing the parties. It cannot be decided one way or the other without trying or examining such issue or the case. Learned Counsel for the respondent made a reference to the decision of the Nagpur High Court, in the case of Shaligram Shriram dangra v Sheopratap Wallabhdas and Another. In that case it has been observed:"implements would mean such instruments as the agriculturist handles in the course of his agricultural work or work connected with agriculture". In the Nagpur's case, they have also observed, "implement also means an instrument used in work especially manual work". "driving a motor-tractor cannot be said to be manual work and it cannot therefore be regarded as an implement". With all due respects to the learned Single Judge of Nagpur High Court, i beg to differ from the later part of their observations as, in the supreme Court's decision referred to above, the Supreme Court has not laid emphasis on that as a condition nor used the expression manual labour. I may point out the Hon'ble Supreme Court has observed that implement of husbandry means "an instrument used for tilling the soil". Machines used for tilling the land such as tractor, then definitely it could be said to be an instrument or implement of agriculture. He may not be tilling the land by manual work. Nagpur High Court while deciding the case held that manual work has to be looked. Apart from that now modern science has developed. If we look to the Nagpur case, then it means we have to use 18th or 19th century's old instruments and we should not look to the scientifically developed instruments and should not make use of those instruments which may help in growing more crops. Much water has flown and much scientific development has taken place since 1939. Six decades have almost passed on. We cannot ignore the scientific development and in particular when our Constitution imposes a duty on the citizen, then what to say of a Judge, that we must develop a scientific temper and when a Judge takes oath to uphold constitution, it is his duty to uphold the Constitution and also to follow the mandate of Constitution. Article 51-A reads as under:"article 51-A. It shall be the duty of every citizen of India. Article 51-A reads as under:"article 51-A. It shall be the duty of every citizen of India. (a) to abide by the Constitution and respect its ideal and institutions, the National Flag and the National Anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of india; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious; linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement". Article 48 of the Constitution imposes a duty on the State to endeavour to organise agricultural and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and ordains for improving of the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Therefore, to encourage the use of modern and scientific methods for the purpose of agriculture is one of the duties of the State which may also include this organ i. e. , judiciary. Therefore, the expression "implements of agriculture or husbandry has got to be construed keeping in view the basic principles enshrined in Articles 48 and 51-A of the Constitution. In 1939, Nagpur high Court might have been right in taking that view when tractor was not largely used for agriculture. But it has to be taken note that the constitution was not there at that time. ( 3 ) IN this view of the matter, it appears much water has flown particularly when aforesaid Articles are to be looked into. But it has to be taken note that the constitution was not there at that time. ( 3 ) IN this view of the matter, it appears much water has flown particularly when aforesaid Articles are to be looked into. Allahabad High court's decision appears to be in consonance with the basic principles enshrined in Articles 48 and 51-A that it has to be looked into whether tractor is being used for tilling and that runs in consonance with what has been laid by their Lordships of the Supreme Court. Learned Counsel invited my attention to an earlier Division Bench decision of this Court in the case of Shive Gowda P. A. v Syndicate Bank and Another, after referring to the Supreme Court's decision, the Division Bench observes,"what emerges, therefore, from the above observations is that before the appellant can claim the benefit of the exemption under proviso (b) to Section 60 of the CPC, he must show that he is an agriculturist, in the sense that though it may not be necessary that he should till the lands with his own hands, he was really depending for his livelihood on tilling the soil and he was unable to maintain himself otherwise. This question, which is a question of fact, has got to be decided on the pleading and evidence. No such plea was taken by the judgment-debtor before the executing court, much less, any evidence let in the show that the appellant was really depending for his living on tilling the soil and was unable to maintain himself otherwise". Making these observations, their Lordships proceeded to consider whether a mechanically propelled apparatus like a tractor is or is not an "implement of husbandry of an agriculturist" necessary to enable him to earn his livelihood. Their Lordships referred to the Allahabad High court's decision and Nagpur High Court's decision and thereafter observed that what was saved to an agriculturist under proviso (b) to section 60 of the CPC are only such implements as are ancillary to and concomitants of the actual tilling of the soil and necessary to earn his livelihood. Their Lordships further observed that, "the tractor is not such an implement as would admit of being considered necessary to enable an agriculturist to earn his livelihood". Their Lordships further observed that, "the tractor is not such an implement as would admit of being considered necessary to enable an agriculturist to earn his livelihood". These observations of the Division Bench appears to be based on non-consideration of the basic principles enshrined under the Constitution namely Article 48 that the State shall endeavour to organise agricultural and animal husbandry on modern and scientific lines and the article 51-A which ordains every citizen to develop a scientific temper. These principles were very material in interpreting Section 60. Non-consideration of these provisions while interpreting Section 60, in my opinion, rendered this judgment per incurium A. R. Antulay v R. S. Nayak. A judgment is per incurium which has been arrived at in ignorance of some material provisions of law and Constitution binding on the state. Further, the Supreme Court has interpreted the implement of husbandry as the implement with which he tills the soil. Tilling of the soil is necessary for earning income and if tilling cannot be done properly in view of attachment of tractor why it should not be the relevant, factor to be taken into consideration. So this Division Bench's decision only appears to be denued of precedent value and part of decision which is said to be per incurium. Whether tractor is an agricultural implement it will depend on the circumstances of each case. No general dictum can be laid down. It has to be looked into in the context of cultivating of a small farm or big farm. It has to be looked into in the context, facts and circumstance prior to attachment. If during the period immediately before the attachment i. e. , if during the tilling season as aforesaid it is proved that the tractor was being used, then it may be said to be an implement of agriculturist whose livelihood primarily depends on income out of agriculture. So two questions have to be examined while answering and deciding whether a particular instrument is to be considered an implement of agriculturist. So two questions have to be examined while answering and deciding whether a particular instrument is to be considered an implement of agriculturist. It has to be examined and looked into (1) whether the claimant is an agriculturist or not in the sense that his principal source of income and his livelihood primarily depends on agriculture; and that he is unable to maintain himself otherwise as prior to attachment; and (2) whether the implement in question, even if tractor, was being used for the purpose of tilling of the soil as agriculturist immediately before the attachment during the tilling season. ( 4 ) THUS considered in my opinion, the question whether the tractor was an agricultural implement it was the duty of the Court below to have applied its mind to these aspects of the matter before recording the finding. If in a particular case, looking to the facts and circumstances of the case, tractor could be considered to be an agricultural implement, it will stand exempted from attachment and sale under proviso (b) to section 60 of the CPC. It cannot be laid as a general proposition of law in every case that tractor may be said to be an agricultural implement, but on the facts and circumstances of the case as alleged and proved it has to be considered. It has to see whether tractor is used or has been used for the purpose of tilling of the land or for agricultural purposes and if it has been so used immediately before the attachment and then it may be said to be an implement of agriculture. If a claimant fails to prove it that he is an agriculturist, that he has been using this implement for the purpose of tilling of the soil, then he may not be entitled for the benefit under Section 60. In the present case, in my opinion, the Court below has committed an error which touches its jurisdiction in deciding this question as without applying its mind to these aspects of the matter. In the present case, in my opinion, the Court below has committed an error which touches its jurisdiction in deciding this question as without applying its mind to these aspects of the matter. Really, the execution Court should have framed the issues whether the applicant or the objector is an agriculturist in the sense as mentioned above with reference to the Supreme Court's decision and whether the tractor in question which has been attached has been an agricultural implement in the sense that the claimant has been using it for tilling of the soil immediately before the date of attachment in the sense that during the tilling seasons of soil, the land had been and used to be tilled by the tractor. The test is the user of the instrumentality and tilling of the soil, and whether the principle source of income and his livelihood of claimant primarily depends on agriculture. ( 5 ) THUS considered in my opinion, the order passed and the finding recorded by the execution Court, as such, is vitiated by jurisdictional error in the sense that really it did not try the necessary question after framing necessary and proper issues and giving an opportunity to the parties to adduce evidence. Therefore, in my opinion, the execution Court acted illegally and with material irregularity in dismissing the applicant's claim of exemption under Section 60 (1) proviso (b) of the CPC as well as when trying that question as to whether the tractor could be said to be exempted under Section 60 proviso (b) as an implement of animal husbandry and as a tool of agriculture. ( 6 ) THUS, considered in my opinion, the judgment of the Court below as it suffers from illegality or irregularity, it deserves to be set aside. Revision is allowed subject to the condition that the petitioner deposits at least 20% of the loan amount or 25% of the amount so far and now due whichever is lesser within three months from today or in every case within a period of three months from the date of first appearance of the party before the execution Court on the date to be fixed by the execution court after receipt of this order whichever is later. The Court below is directed to try these issues afresh on applicant's having deposited the above mentioned amount with the bank or with the Court within the above mentioned period. In case deposit is not made within the prescribed period as aforeindicated, the revision shall be deemed to have been dismissed. The Court below will dispose of the application according to law keeping in view the basic principles laid down above after trying the matter afresh. Until decision on the objections afresh, or default on the part of the revision petitioner in complying with the conditions of the order, the property or the tractor shall not be put to auction sale. The revision is allowed subject to above observations. ( 7 ) THIS Court's costs are made easy i. e. , parties to bear their own cost of proceedings in this Court in revision. --- *** --- .