(BADAM) SESHIAYYA Vs. (GRANDHI) SATTIRAJU

JUDGEMENT

(1.) This is a second appeal by the judgment-debtor whose application E.A. 72 of 1925 dated 15 January 1925 praying that the decree-holder's execution application E.P. 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, Civil P. C, as the decree in O.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. 72 of 1925) which in terms asked that another application E.P. 543 of 1923 should be dismissed was obnoxious to Rules 67 and 176, 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, Civil P.C, as it related only to procedure and not to the rights of the parties. On appeal the learned Subordinate Judge upheld the Munsiff'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 176, 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 act 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 cognizable under Section 47, Civil P. C, it is ingenious but unsound.