BADAM SESHAYYA Vs. GRANDNI SATHIRAJU

JUDGEMENT

(1.) This is a second appeal by the judgment-debtor whose application E.A. No. 72 of 1925 dated 15 January, 1925, praying that the decree holder's execution application E. P. No. 543 of 1923 dated 7 December, 1923, in execution of the decree in O.S. No. 676 of 1922 should be dismissed was itself dismissed by both the lower Courts, A preliminary objection to the Second Appeal was taken that no Second Appeal lies under Section 102 of the Civil Procedure Code as the decree in 0.S. No, 676 of 1922 was of a Small Cause nature and the value of the subject-matter was less than Rs. 500. The appellant's Advocate does not contest this objection which must prevail.

(2.) As he has also filed a Revision Petition against the order of the lower Courts I proceed to dispose of it. In substance the petitioner's (judgment-debtor s) objection in the lower Courts was that the decree-holder was proceeding to get his property brought to sale in the absence of a subsisting attachment and that, this irregularity should be stopped. The District Munsif did not enter into the merits of the objection but held that the form of the petitioner's application (E A. No.72 of 1925) which in terms asked that another application B.P. No. 543 of 1923 should be dismissed was obnoxious to Rules 67 and 178 of the Civil Rules of Practice, which forbid applications with that form of prayer. He was also of opinion that the objection did not fall within Section 47 of the Civil Procedure Code as it related only to procedure and not to the rights of the parties. On appeal the learned Subordinate Judge upheld the Munsif's order but supported it on additional grounds, i.e., that the question of attachment or no attachment was res judicata and that the petitioner was estopped by his conduct from raising it.

(3.) As to the formal objections based on Rules 67 and 178 of the Civil Rules of Practice, there is a substantive grievance raised by the petition and if it is true, the fact that its redress was not sought in more apt language than that adopted, which was perfectly easy to adopt, need not stand in the way of that redress. Then as to the point that the objection was not one cognisable under Section 47 of the Civil Procedure Code it is ingenious but unsound. What is said is that insisting on proper procedure being adopted for selling property in execution is raising a question not relating to execution, discharge or satisfaction of the decree; but only to procedure. The answer is that an objection as to the defect or absence of the necessary attachment of the property sold in execution comes within the provisions of Section 47, Ma Pwa V/s. Muhammad Thambi 77 Ind. Cas. 368 : 1 R. 533 : A.I.R. 1924 Rang. 124.