PATEL ASHABHAI SOMABHAI Vs. PATEL ISHWARBHAI LALLUBHAI

JUDGEMENT

(1.) This appeal arises out of execution proceedings The respondent is the original plaintiff and the appellant is the original defendant. The respondent filed against the appellant a civil suit to recover a sum of Rs. 3500.00. Decree was passed in that suit for a sum of Rs 2500/-. The decretal amount was ordered to bear future interest and was made payable by instalments. The appellant committed defaults in payment of certain decretal instalments. Therefore the respondent filed Execution Application No. 166 of 1965 against the appellant to recover from him the balance of the entire decretal amount which had remained unpaid. In that execution application the appellant contended that he was an agriculturist and that therefore his houses were not liable to be attached and sold in execution of the decree passed against him. He also contended that the agricultural lands belonging to him had been fragments and that therefore they also could not be attached and sold in execution of the said decree. At the hearing of those objections the respondent was absent. The executing Court however took evidence which the appellant produced and made an exparte order by which it upheld the objections of the appellant. Having done so it dismissed on 24th February 1966 that execution application .

(2.) Thereafter the respondent filed the present execution application for recovery of the said decretal amount and prayed for attachment of those very properties of the appellant in respect of which the order had been recorded in favour of the appellant in the earlier execution application. The appellant contended that the present execution application was barred by res judicata because the matter in controversy between the parties had already been decided in the earlier execution application. The executing Court upheld that contention of the appellant and dismissed the execution application. The respondent appealed to the District Court against that order. The learned District Judge set aside the findings recorded by the executing Court and held that the present execution application was not barred by res judicata. He therefore set aside the order of dismissal recorded by the Executing Court and directed the execution application to proceed further according to law.

(3.) It is that appellate order which is challenged by the appellant in this Second Appeal.