RAM SINGH Vs. BHERULAL

JUDGEMENT

(1.) This is an appeal against the order passed by the Addl. District Judge on 306-1976, whereby the order passed by the Executing court on 25-10-1976, rejecting objection about attachability and saleability of the house in dispute, in view of the provisions placed in Section 60 (1) (c) of the Code of Civil procedure, has been affirmed.

(2.) Facts material for the decision of this appeal are as under: The decree- holder-respondent-herein obtained a money decree against the judgment- debtor-appellant-herein in Civil Suit No. 38B of 1971, from the Court of Civil Judge, Class II, Neemuch, He put this decree in execution, the execution case being 197 of 1972, and attached the house belonging to the judgment-debtorappellant on 30-4-1975. Thereafter a notice under Order 21, Rule 66, C. P. C. was issued for 5-8-1975. However, the said notice was served by affixure on 25-7-1975, as per the report of the process-server dated 26-7-1975, On 5-81975 the Executing Court passed an order to the effect that service of notice under Order 21, Rule 66, C. P. C. has been effected on the judgment-debtor. Now, the decree-holder wants to put to auction the said house belonging to the judgment-debtor, which has already been attached. Accordingly, the Court directed issuance of a proclamation of sale for 29-9-1975 and fixed 30-9-1975 as date of hearing in the case. The judgment-debtor-appellant submitted an application on 8-8-1975, wherein it was contended that attachment has not been effected in accordance with law and that the house attached is immune from sale by virtue of the provisions placed in the proviso (c) to Section 60 (1), C. P. C. as it is occupied by the judgment-debtor, who is an agriculturist and is being used for agricultural purposes. This application was opposed by the decree-holder inter alia on the ground that it is barred by the doctrine of constructive res judicata. This objection found favour with the Executing Court and by order dated 26-10-1975 the Executing court rejected the application as being barred by constructive res judicata. Aggrieved by this order the judgment-debtor preferred an appeal, which has been dismissed. Hence this appeal.

(3.) In this appeal it was contended by Shri D. D. Vyas, learned counsil for the judgment-debtor-appellant that the doctrine of constructive res judicata has been erroneously applied, because the judgment-debtor has right to object to the saleability of the house in dispute at any time prior to its sale. Shri V. K. Dube, learned counsel for the respondent argued in support of the impugned judgment and decree. Having heard the learned counsel for the parties. I have come to the conclusion that this appeal deserves to be allowed to the extent indicated hereinafter.