RAMCHANDRA NAHAKA Vs. BHARAT RANA

JUDGEMENT

(1.) THIS is an appeal from the Judgment of the Additional Subordinate Judge of berhampur, dismissing an appeal filed against the judgment of the Munsif of berhampur, in an execution case, allowing the objection of the judgment debtor to the attachment of his residential house in view of the provisions of Clauses (b) and (c) of Section 60 of the Civil Procedure Code. The judgment debtor claimed to be an 'agriculturist and hence he sought for exemption under the said clauses of the civil Procedure Code.

(2.) THE sole point of law taken by Mr. Misra for the appellant is that the objection of the judgment debtor under Clauses (b) and (c) of Section 60, C. P. C. is barred by res judicata. A scrutiny of the records of Execution Case No. (E. P 7 of 1960) shows that on 15-3-62 the judgment debtor filed a petition describing it as one under section 47 read with Section 151, C. P. C. and objecting to the attachment and sale of the property on the ground that he was an agriculturist and that consequently Clauses (b) and (c) of Section 60, C. P. C. would be attracted. The executing Court registered a miscellaneous case (M. C. No. 60/1962) and issued notice to the decree-holder. This case was adjourned on several dates though both parties were present. On 20-10-62, the Executing Court passed the following order in this case; "the petitioner files a petition for time. Opposite party files a Hazira. Adjourn to 8-11-62 for hearing. On 3-11-62 he passed the following order: "the petitioner is absent on calls. Opposite Party is present. So the miscellaneous case is dismissed for default without costs. " on 12-11-62 the judgment debtor again filed a petition, on almost identical terms, purporting to be one under S, 151, C. P. C. praying that his properties may be exempted from attachment and sale in view of the provisions of Clauses (b) and (c) of Section 60, C. P. C. The Court posted this petition for hearing to 17-11-62, and then, after hearing parties and taking evidence, allowed the petition and set aside the attachment and sale of the house and other properties of the judgment debtor. An appeal against this order was unsuccessful.

(3.) MR. Misra for the appellant contended that the order of the Executing Court dated 3-11-62 in M. C. No. 60 of 1962 would operate as res judicata and that the judgment debtor was precluded from filing a fresh petition on the same grounds, but purporting to be one under Section 151, C. P. C. and canvassing the very same point.