MIZAJI LAL Vs. SETH LACHHMI NARAIN

JUDGEMENT

(1.) This is an application in civil revision in which the only point pressed is that an objection of a judgment-debtor in execution proceedings which had been dismissed for default does not operate as res judicata against the judgment-debtor to prevent him from making the same objection again. The facts are that there was a Small Cause Court decree passed by the Court of Lakhimpur which was transferred for execution to the Court of the Munsif of Farrukhabad on the regular side. In the Lakhimpur Court on 16th January 1930, the judgment-debtor made an objection that he was prepared to fix a pump in the plaintiff s house before the period fixed had expired and that the decree-holder refused to allow him to carry out this portion of the decree. The same objection was made by the judgment-debtor on 13th August 1930, in the Court of the Munsif Farrukhabad. The Courts have gone into the merits of this objection and have he d that the objection is correct, but the lower appellate Court has held that the objection is barred by the principle of res judicata.

(2.) Learned Counsel for the judgment-debtor applicant relies on a ruling which is Lakshmi Anant 3 Ravji Bhikaji 1929 Bom. 217. In that case it was held where an application is dismissed in default of the appearance of the applicant that order does not operate as res judicata against a subsequent application to the same effect by the same applicant. This was also in execution proceedings. The case is very similar to the present case. There is also a ruling of a Bench of this Court in Raghukul Tilak v. Pitam Singh 1931 All. 99. It was held that the rule of res judicata applies to subsequent proceedings in the same suit only when the point has been raised and decided. Following these rulings, as there has been no decision on the merits of the point, the rule of res judicata does not apply and accordingly, I allow this civil revision and allow the objection of the judgment-debtor and dismiss the application of the plaintiff for execution with costs in all Courts. The stay order is discharged.