CHACKO JOSEPH Vs. CHERIAN CICILY

JUDGEMENT

(1.) The decree holder is the appellant. While the decree was being executed the 3rd defendant, who has purchased items 2 and 3 from the 2nd defendant, raised a plea of marshalling and contended that item I should be directed to be sold before the other items. This claim was upheld by the execution court and hence this appeal.

(2.) The 3rd defendant could normally have raised the plea of marshalling in execution. But in the present case he chose to urge this plea even at the trial stage and to take a decision. That decision was on issue II in the suit and the finding on that issue was that there was no special equity in favour of either party and that, therefore, the plaintiff decree holder is entitled to proceed against the plaint items in any order he likes. This is a finding which is binding on both the parties. No doubt the lower court has relied on the ruling in 18 TLJ 326 which is in favour of the contention urged on behalf of the 3rd defendant. There it was ruled that even if the plea of marshalling had been raised at the trial stage of the suit, it will be open to the execution court to consider the question afresh and to come to an independent conclusion. We regret we are unable to accept that ruling as correct. A party who elected to take a decision by raising the plea at the trial stage, must be bound by that decision and he cannot be allowed to agitate the same matter once again in execution. The execution court cannot go against the terms of the decree or to set aside or set at naught a decision rendered by the Trial Court. Accordingly we hold that the 3rd defendant is concluded by the finding on issue 3 on the question of marshalling raised by him.

(3.) The result is that this appeal is allowed with costs and in reversal of the order of the lower court the decree holder is allowed to execute the decree and to proceed against the plaint items in any order he chooses.