PRABHULAL LAL Vs. BABU SINGH

JUDGEMENT

(1.) This is a decree-holder's second appeal against an appellate order whereby an appeal of the decree-holder against an order passed in execution by the executing Court was confirmed.

(2.) The facts, briefly stated, are that a preliminary decree for sale on the basis of a mortgage was passed in favour of the decree-holder on 23-1-1946, whereunder the house in dispute in the execution proceedings giving rise to this appeal was to be sold. In view of the findings of the Court below there is no controversy before me now that the house in dispute constituted the residential house of the judgment-debtor who, at all times, has been an agriculturist. Before the passing of the final decree Section 60 of the C. P. C. was amended by the U. P. Legislature by the Code of Civil Procedure (United Provinces Amendmment) Act No. XXXV of 1948 (hereinafter referred to as the U. P. Amending Act. This Act came into force on 28-8-1948. Thereafter, on 6-8-1949 a final decree directing sale of the house in dispute was passed. Applications for execution of the decree by sale of the house were made in 1952 and 1955 but these were dismissed and, ultimately, the application giving rise to the order under appeal, which was the third application for execution, was made on 24-10-1958. It was in connection with this third application that the judgment-debtor-respondent, for the first time, raised an objection that the house in controversy was protected from sale by reason of the U. P. Amending Act. The executing Court accepted this objection and directed the house in suit to be treated as released from liability to sale in execution of the final decree. It was against this order that the decree-holder appealed, but the appellate Court confirmed the order of the executing Court, whereafter the decree-holder filed the present second appeal.

(3.) Learned counsel for the appellant has urged that the failure on the part of the judgment-debtor to raise any objection against the prayer of the decree-holder to sell the house in the first two applications for execution in the years 1952 and 1955 precluded the judgment-debtor, on the principles of constructive res judicata, from raising any Audi objection when the decree-holder made the third application for execution on 24-10-58. His contention is that, in the circumstances, it was not open to executing Court to entertain the objection that the house in controversy was not saleable. Learned counsel has cited two cases in support of his contention, viz., Shivraj Gopalji v. Ayissa Bi, AIR 1949 PC 302 and Mohanlal Goenka v. Benoy Kishna Mukherjee, AIR 1953 SC 65. Learned counsel has also urged that failure on the part of the judgment-debtor to raise the plea of exemption at the time the final decree was passed after the U. P. Amending Act had come into force constitutes another good ground for the contention that the present objection of the judgment-debtor was barred by the principle of res judicata.