The main legal point established in the judgment is the need for a conscious adjudication of the question in execution proceedings and the limitations of S.44 of the Evidence Act in avoiding a plea of res judicata.

1. This appeal is by the 6th defendant-respondent in S. A 729 of 1953 on the file of this court

2. The matter arises out of an objection filed by the appellant 6th defendant under S.47 C.P.C. against the delivery in execution, of items 1 to 4, to the respondent additional 3rd plaintiff. These items had been obtained assignment of by the 3rd plaintiff from the 2nd plaintiff original decree-holder-auction¬purchaser. It was the case of the 6th defendant that he alone had advanced the purchase money in respect of the assignment and the 3rd plaintiff who had married his daughter since deceased, was a mere benamidar for him in the matter. The 3rd plaintiff denied that he was a benamidar and further objected to the maintainability of the objection on various grounds. The executing court as well as the District Court in appeal by the 3rd plaintiff found concurrently in favour of the 6th defendant on both aspects of benami and maintainability and refused delivery. In second appeal, by the 3rd plaintiff, however, Nanadana Menon, J., held that the 6th defendant was debarred from maintaining his objection, in view to his quiescence at earlier stage. Hence this appeal by the 6th defendant and with leave therefor.

3. The 4 items in dispute along with two others, viz., 5 and 6 originally belonged to Ibrahim the ancestor of defendants 1 to 5. On foot of an encumbrance charging all the C items in his favour, the 5th defendant filed suit and obtained decree in O. S.271 of 1108 against defendants 1 to 5 and in due course of execution, purchased them himself on 27-6-1109. He took delivery however of the present items 1 to 4 leaving the two other items to the defendants 1 to 5, in consideration of their undertaking to pay off the prior encumbrance in favour of the original plaintiffs 1 and 2 in this suit. According to the 6th defendant, the failure of defendants 1 to 5 to fulfil their undertaking led to this suit and decree and with a view to safeguard his interests it was, that he got the 3rd plaintiff to purchase on his behalf, items 5 and 6 at the execution sale on 3-12-1115 and later, on 15-4-1116 he obtained the assignment as regards the items 1 to 4.

4. At date of the assignment, of the items 1 to 4, the court sale in favour of the assignor 2nd plaintiff was yet unconfirmed in view of the pendency of petitions under Order XXI, R.87 corresponding to Order XXI,

R.90 (Indian) filed by both defendants 1 to 5 and also the 6th defendant. So on 20-4-1116 a joint petition was filed as E. P. No. 419 of 1116 by the 2nd and 3rd plaintiffs for recognition of the assignment of items 1 to 4 or of the decree. After notice on this application to the defendants 1 to 5 and also the 6th defendant and in the absence of any objection from them, the court on 29-4-1116 directed immediate impleading of the 3rd plaintiff, the office however to take further orders after the petitions under Order XXI, R.87 were disposed of. These petitions were rejected and the court sales confirmed on 9-8-1116 but on the same day the E. P. No. 419 of 1116 was struck off. On 13-10-1116, the 3rd plaintiff applied for delivery of items 5 and 6 alone as against defendants 1 to 5. Vide E. P. No. 817 of 1116. The 6th defendant to whom also notice was issued on this application did not appear or object. The defendants 1 and 5 raised certain objections but these were overruled and the 3rd plaintiff was placed in possession of items 5 and 6 on 3-4-1117, though he had to file a fresh E. P. on 30-2-1117 the prior E. P. 807 of 1116 having been rejected in the interval on 21-11-1116. It was about two years later on 5-8-1119 that the 3rd plaintiff started the present proceedings for delivery of items 1 to 4 and the 6th defendant came forward with his objections.

5. Now the respondents contention in bar of the 6th defendant's objection was based upon the fact that long early on 29-4-1116 the 3rd plaintiff had after opportunity afforded to the 6th defendant to object if he desired, been recog