MODI, J.

( 1 ) THIS is an execution appeal by a judgment-debtor against an order of the district Judge, Jodhpur, dated the 3rd of August, 1962, dismissing an application under Order XXI, Rule 90, Code of Civil Procedure in circumstances presently to be mentioned.

( 2 ) RESPONDENTS Nos. 3 and 4 Kanmal and Chandmal had obtained a decree against the appellant Bhanwarilal for enforcement of a mortgage. Respondent No. 2 Brij kishore is an assignee of that decree. The house under mortgage was put to auction in execution of the decree, and respondent No. 1 Shyamlal Goyal purchased it. The appellant moved an application under Order 21, Rule 90, Code of Civil Procedure alleging that there were certain irregularities and illegalities in the publishing and the conducting of the sale and, therefore, the same be set aside. Issues were framed by the executing Court on the 13th of July, 1962 and had presumably been set down for trial, when an objection was raised that the other issues need not be tried, and the issue relating to res judicata be taken up first as that would go to the root of the whole matter. The result was that the learned Judge heard arguments on that issue and came to