NAGESHWAR PRASAD Vs. JAI BAHADUR SINGH

JUDGEMENT

(1.) It appears that a money decree was obtained by the Kayasth Bank of Gorakpur against Mt. Basmati and Indrawati in the year 1918. The decree was assigned to the appellant who proceeded to execute it and filed the first execution petition on 25 September 1929. It is said on behalf of the appellant that the respondent who is the son of one of the judgment-debtors appeared and raised certain objections to the execution but the objections were dismissed on 9th November 1929 in the absence of both the judgment-debtor and the decree- holder.

(2.) The execution case was also struck off on 7 January 1930. On 30 January 1930 another appication for execution was filed on behalf of the appellant and was duly registered. On 23 June 1930 the respondent appeared and objected to the execution. It may be noted here that the appellant's case is that the objections raised on this occasion were identical with the objections raised in the previous execution case. The learned Munsif in whose Court the execution proceedings were pending held that the respondent was debarred from raising the same objections on the principle of res judicata and he directed the execution to proceed.

(3.) Then there was an appeal to the District Judge who held that the principle of res judicata did not apply in the circumstances of the case because in the first place the order sheet of the execution proceedings did not show who was the objector and what the nature of the objections was in the previous execution case, and, secondly, because on the date on which the objections were dismissed for default neither the decree-holder nor the objector was present and when the decree-holder was not present there was no necessity for the objector to press his objections. From this decision an appeal has been preferred to this Court and it is argued on behalf of the decree-holder that the learned Judge was wrong in holding that the matter was not res judicata and that the Court was competent to entertain the objections raised by the respondent.