(1.) SUBHEDAR , A.J.C. 1. This second appeal arises out of proceedings in execution of a decree in which the appellant decree-holder had attached a house situate at mouza Boralal in the Basim Taluq belonging to the respondent judgment-debtor. On an objection by the latter that the house in question was occupied by him as an agriculturist it has been released from attachment. Both the Courts below have concurred in finding that the respondent judgment-debtor was an agriculturist and that the house attached was used by him as an agriculturist. They have also held that the respondent judgment-debtor was competent to raise the objection in spite of the fact that he did not raise it at the time when he had made an application for setting aside its first sale.
(2.) THE first contention raised was that the evidence on record does not warrant the finding that the respondent was an agriculturist and used the house as such, because the witnesses, who speak on the point, do not do so on personal knowledge. I, however, find that the witnesses are very definite in their statements and if the appellant wanted to challenge their testimony as hearsay he should have done so in cross-examination.
(3.) THE last point urged was that the objection under Section 60(1)(c) not having been preferred at the time when the judgment-debtor moved for setting aside the first sale on grounds of irregularities the judgment-debtor was barred by the principles of res judicata in urging the same at a later stage of the execution proceedings. Reliance was placed in support of this argument on the case of Mt. Rukhamabai v. Ramchandra A.I.R. 1925 Nag. 320. But since the facts and circumstances of that case are easily distinguishable from those of the present case the law propounded therein does not apply here. The proviso to Section 60(1) is mandatory and the Courts have no jurisdiction to attach and sell any of the several properties specified therein. There being no prescribed period of time within which an objection of the present nature has to be preferred the Courts below were right in entertaining it and deciding it on its merits in spite of the fact that it was not urged at an earlier period of the execution proceeding's. The appeal fails and is dismissed with costs. Pleader's fee Rs. 25.