OUDH BIHARI PANDE Vs. MAHABIR SAHI

JUDGEMENT

(1.) The decree-holders obtained two decrees on the 26 of March 18,98. One decree was obtained in suit No. 275 of 1.895. The other was obtained in suit No. 272 of 1895. The decrees were for sale on foot of mortgages. Orders absolute were obtained on the 15 of December 1899. The first application for execution was made in respect of the decree in suit No. 275. The decree was apparently time barred. The decree-holders, however, alleged that the proceeds of certain timber had been applied in part payment of the decree. The Court executing the decree found the part payment not proved by the decree-holders, and rejected the application.

(2.) The first application in suit No. 272 for execution of the present decree was made on the 9 of January 1903. The decree-holders there also alleged part payment. The decree-holders obtained an order that notice should go to the judgment-debtors. The application was, however, subsequently struck off without any further order having been made. The present application for execution was made on the 18 of September 1905. The judgment-debtors have raised a number of objection.

(3.) It is urged that the part payment of the, decree by means of the sale of timber had already been adjudicated upon when execution of the other decree was being asked for. Both the Courts below have found that the decision in the previous execution case did not operate as res judicata. In this conclusion we agree. The matter in issue then was whether or not a payment had been made on foot of the other decree. The question now in issue is whether or not part payment has been made on foot of the present decree. Both the Courts below have found that there was a part payment made by means of a sale of the timber. This is a finding of fact binding upon this Court.