GANGADHAR MARTAND JOSHI Vs. SIR JAGMOHANDAS VARJIVANDAS

JUDGEMENT

(1.) The three numbers belonging to the appellant judgment-debtor including a house were attached in execution by the decree-holder respondent, and notice of the attachment on the appellant was returned on July 24, 1925. The appellant objected that the decree was declaratory and the attachment improper. These points were decided against him, and the property was ordered to be sold through the Collector. After the sale he applied that the property was not liable to sale under Section 60 of the Civil P. C.. Pending disposal of that objection the appellant was not dispossessed. The trial Court dismissed the application as being unduly delayed. The judgment-debtor appeals.

(2.) It is argued for the appellant that the trial Court appears to have had Order XXI, Rule 58, Civil Procedure Code, in its mind, whereas the appellant being the judgment-debtor and not a third party the application is governed by Section 47, Civil Procedure Code. It is contended for the respondent that the application is barred as res judicata by reason of issue No. 7 and the finding on it in the previous proceedings, and is also barred by limitation under Art. 181 of the first schedule of the Indian Limitation Act.

(3.) Order XXI, Rule 58, Civil Procedure Code, has no application, the appellant being the judgment-debtor. The application falls under Section 47, Civil Procedure Code, and Art. 165 of the Indian Limitation Act has no application as the appellant had not been dispossessed, but rather Art. 181 applies : Rasul v. Amina s.c. 24 Bom. L.R. 771. The question arises when the right to apply accrued to the appellant under Art. 181. It is argued for the appellant that Section 60 exempts such property both from attachment as well as from sale, and, therefore, the right accrued not merely on attachment but also upon sale. Secondly, the principle of res judicata will not apply to every objection raised in execution proceedings. As observed by Fawcett J. in Gadigappa V/s. Shidappa s.c. 26 Bom. L.R. 817 the principle should be applied with great caution.