A judgment-debtor cannot challenge the sale of his property in execution of a decree by a separate suit, if he has already raised objections to the sale under Section 47 of the Code of Civil Procedure and the objections have been decided against him.

Raj Kishore Prasad, J.

1. Two points have been pressed in this appeal:

(1) that Sec. 47 of the Code of Civil Procedure has no application to the facts of the present case, and, (2) that the plaintiffs-appellants suit is not barred by res judicata.

(2) In order to appreciate and decide the points raised in the appeal, it is necessary to know a few facts. A decree for mesne profits was obtained by the respondents on the 14th January, 1933 against the plaintiffs-appellants, their father, and others. Before the decree was put into execution, the plaintiffs, and some others, applied for setting aside the ex parte decree for mesne profits, under Order 9, Rule 13 of the Code of Civil Procedure. Meanwhile, the decree for mesne profit, was executed in Execution Case No. 159 of 1931.

2. The application of the plaintiffs under Order 9, Rule 13 of the Code of Civil Procedure was allowed, and the ex parte decree for mesne profits, as against the plaintiffs also, was set aside on the ground that the plaintiffs, who were minors then, were not duly represented, and, as such, the decree against them was void. The executing court on receipt of the order, setting aside the decree under execution against the plaintiffs, ordered that the execution could not proceed against the plaintiffs, as also against some other persons, who were parties to the proceeding under Order 9, Rule 13 of the Code of Civil Procedure. This execution case was dismissed for default, and, thereafter, a fresh execution case No. 21 of 1933 was taken out by the defendants respondents, and, the properties in dispute, which are the shares of the plaintiffs, were also put up to sale, and purchased on the 22nd January, 1935, by the defendants-respondents. They, thereafter, applied for delivery of possession, and then the plaintiffs filed an application under Sec. 47 of the Code of Civil Procedure objecting to the delivery of possession on the ground that the decree under execution against the plaintiffs having been set aside, it could not be executed against them, or their properties, and, as such the sale was not binding on them.

This objection was, however, rejected; and, the defendants, thereafter, got delivery of possession. Ultimately, an appeal was taken, against this order, to the High Court, which was heard and decided by Courtney-Terrell, C. J. and James, J., and, they dismissed the appeal of the present plaintiffs.

3. The plaintiffs, thereafter, as majors, brought the present suit, out of which the present appeal arises, for a declaration that the sale, held in Execution Case No. 21 of 1933, in respect of the properties of the plaintiffs, was a nullity, and, not binding on them, and, therefore, they inter alia sought a declaration of their title, and also asked for recovery of possession.

4. The plaintiffs suit has been dismissed by both the courts below. The learned Subordinate Judge has dismissed the plaintiffs suit mainly on the ground that the plaintiffs suit was barred by the principle of res judicata. The plaintiffs, therefore, preferred the present second appeal, which has been referred to a Division Bench by Jamuar, J., for decision.

5. In support of the first contention, that Sec. 47 of the Code of Civil Procedure does not apply to the facts of the present case, Mr. Awadh Bihari Saran, who appeared for the appellants, has put forward the argument that as the plaintiffs application, no doubt, under Sec. 47 of the Code of Civil Procedure, was filed after the confirmation of the sale at the stage of the delivery of possession, Sec. 47 had no application at that stage, because the execution terminated with the sale, and with the termination of the execution, the application of Sec. 47 of the Code did not arise. In support of his contention, he has relied on Abdul Gani V/s. Raja Ram, 1 Pat LJ 232 : (AIR 1916 Pat 216) (FB) (A), and Tribeni Prasad Singh V/s. Ramasray Prasad, ILR 10 Pat 670 : (AIR 1931 Pat 241) (FB) (B). In my opinion, none of these cases apply