BHANWARI LAL Vs. SHYAMLAL

JUDGEMENT

(1.) THIS is an execution appeal by a judgment-debtor against an order of the district Judge, Jodhpur, dated the 3rd of August, 1962, dismissing an application under Order XXI, Rule 90, Code of Civil Procedure in circumstances presently to be mentioned.

(2.) RESPONDENTS Nos. 3 and 4 Kanmal and Chandmal had obtained a decree against the appellant Bhanwarilal for enforcement of a mortgage. Respondent No. 2 Brij kishore is an assignee of that decree. The house under mortgage was put to auction in execution of the decree, and respondent No. 1 Shyamlal Goyal purchased it. The appellant moved an application under Order 21, Rule 90, Code of Civil Procedure alleging that there were certain irregularities and illegalities in the publishing and the conducting of the sale and, therefore, the same be set aside. Issues were framed by the executing Court on the 13th of July, 1962 and had presumably been set down for trial, when an objection was raised that the other issues need not be tried, and the issue relating to res judicata be taken up first as that would go to the root of the whole matter. The result was that the learned Judge heard arguments on that issue and came to the conclusion that the irregularties raised by the judgment-debtor had already been decided earlier by his order dated the 15th of November, 1961 and consequently the principle of res judicata was attracted, and the same issues could not be tried and decided over again. In this view of the matter, the judgment-debtor's objection was dismissed by an order dated the 3rd August, 1962 and it is against this order that the judgment debtors has come up in appeal.

(3.) IT is urged on behalf of the appellant-judgment-debtor that the order of the executing Court is erroneous in law because the principle of res judicata could not have been and cannot be rightly held to be applicable under Order 21, Rule 90, code of Civil Procedure in the circumstances of the case, while on the other hand it has been very strenuously contended by the learned counsel for the contesting respondents that the learned District Judge was perfectly right in the view he took. In order to substantiate the plea of res judicata, reliance is placed on behalf of the said respondents on the order of the learned District Judge dated the 15th november, 1961. This order came to be passed on an application of the judgment-debtor that he had made in the executing Court for postponing the sale which had already been ordered. The objections raised by the judgment-debtor in that application, it clearly appears, were more or less the objections which were sought to be raised by him in his application under Order 21 Rule 90 C. P. C. These objections, so far they are common to the two applications are :--