KOMARENALLI BALARAJ Vs. AKARAPPU GURUCHERENAM

JUDGEMENT

(1.) This is an appeal by the Decree-holder against the order of Sanjeeva Row Nayudu, J. in A. A. O. 121 of 1959, dismissing his execution petition as barred under Section 48 of the Civil Procedure Code, reversing the order of the execution Court that execution could proceed.

(2.) The facts necessary for appreciating the contention raised before us are these: The decree, which is being executed, was passed on 22nd September 1331 F. corresponding 1/09/1921. It is a decree for money. There were a number of execution petitions filed previously, the present one being the ninth. It was filed an 20-3-1957. The Decree-holder applied for proceeding against the property of the first defendant. A notice under Order 21, Rule 22 C. P. C. was issued to the Judgment-debtor (the first defendant). The judgment-debtor did not appear and the attachment of immoveable property was effected, as prayed for. At a subsequent stage, a notice was issued to the judgment-debtor under Order 21, Rule 68 "C. P. C. The judgment-debtor did not also appear in response to this notice. The Court ordered sale of the property. Subsequently, the judgment-debtor entered appearance and objected to the execution of the decree on the ground that the execution petition was barred under Section 48 C. P. C. The execution Court held that the judgment-debtor was precluded from raising the objection by the rule of constructive res judicata relying on Venkatranga Reddy v. Chinna Seethamma, AIR 1941 Mad 440 and Puttappaji v. Mallappa, AIR 1944 Mad 420.

(3.) The judgment-debtor appealed to this Court. Out learned brother Sanjeevarao Nayudu, J. took a contrary view and directed the dismissal of the execution petition as barred under Section 48 C. P. C. The Decree-holder has filed this appeal under Clause 15 of the Letters Patent aggrieved by the said decision adverse to him.