RADHAMONI DEVI Vs. GOBIND CHANDAR DAS

JUDGEMENT

(1.) This is an appeal by the judgment-debtor 1 against an order rejecting her objection under Section 47, Civil P.C. She was defendant 1 in the original suit. Defendant 2 was her husband, a lunatic represented by her as his guardian. The suit was brought for recovery of money said to have been advanced by the plaintiff for the maintenance and other necessary expenses of defendant 2. In the plaint it was alleged that defendant 1 had pledged with the plaintiff some of her ornaments when on one occasion she borrowed Rs. 400 in cash from the plaintiff. The plaintiff prayed for a decree against both the defendants. There was also a prayer for recovery of the amount by selling the pledged ornaments which were set forth in Schedule C of the plaint and the balance from the income of the estate of defendant 2.

(2.) One of the pleas taken by defendant 1 in her defence was that the ornaments, being her personal property, were not liable to be sold, as prayed for by the plaintiff. With reference to this plea the following issue was" framed: "4. Is plaintiff entitled to sell the ornaments of defendant 1 which are her personal property?" On this issue the finding was that the ornaments constituted the personal property of defendant 1 and the plaintiff had no right to recover his dues by selling them. The issue was thus answered in the negative. The suit however was decreed in the following terms: Hence it is ordered that the suit be decreed in part and plaintiff do recover Rs. 2346-13-6 from defendants. He do recover costs according to success besides future interest at the rate of 6 per cent, per annum. Pleader's fee 5 per cent.

(3.) The plaintiff proceeded to execute his decree and in execution he prayed, for sale of the very ornaments with regard to which relief was sought but refused in the original suit. Judgment-debtor 1 raised the objection that the ornaments, being her personal property, were not liable to be sold in execution of the decree. The learned Subordinate Judge rejected the objection and directed that the decree-holder might bring the ornaments to sale by attaching them as prayed for. Against this order judgment-debtor 1 has preferred this appeal. The main contention on behalf of the appellant is that the plaintiff having specifically prayed in the original suit for recovery of his dues by sale of the ornaments in question and that prayer having been refused, the Court executing the decree has no power to sell those properties. In substance the contention is that the matter is res judicata. In my opinion this contention must prevail. The Court executing the decree is bound by the decision in the original suit. There being a distinct issue raised on the point in the suit and that issue having been decided against the plaintiff, it is not open to him to obtain by execution what was expressly denied to him by the decision in the original suit.