TYAGI, J.—Learned counsel for the appellant has raised only one question to be decided by this Court in this execution second appeal, and it is whether the sale of a property which was not attached in execution but was put to sale and if no objection to such a sale was taken by the judgment-debtor at a previous stage of execution would it constitute a constructive res judicata and preclude the judgment-debtor from raising a question about the validity of sale without attachment at a subsequent stage of the execution.

2. In the present case, the decree-holder obtained a decree in the year 1959, but during the pendency of the suit the houses belonging to the defendant judgment-debtor were got attached under O. 38, R. 5 of the Code of Civil Procedure. After the decree was passed, execution proceedings were taken on 7-2-1962 but that execution petition was dismissed for default on 14-4-1962. The second execution proceeding was initiated on 21-2-1970 against Janki Vallabh who was the legal representative of Shyam Sunder Das, the original defendant in the suit. Notices under O. 21, R. 64 were issued to the appellant judgment-debtor and the property which was got attached before judgment during the pendency of the suit was put to auction and the sale was knocked down on 17-3-1971. The judgment-debtor did not raise any objection about the validity of the sale that it could not take place because the property of the judgment-debtor was not attached after the first execution proceeding was dismissed. An objection under O. 21, r. 58 of the Code of Civil Procedure was, however, filed by one Kaluram in which judgment-debtor Janki Vallabh was also a party but in that proceeding Janki Vallabh did not raise a plea that the sale was illegal because the property was not properly attached under Order 21 of the Code of Civil Procedure. It so appears that the auction purchaser could not deposit the balance of the sale price within time and, therefore, the sale which had taken place on 17-3-1971 was set aside by the court. The decree-holder then applied to the executing court to sell the properties of the judgment-debtor once again. 4th, 5th and 6th October, 1971 were fixed for sale, but because of the failure of the decree-holder to deposit the fees for conducting the auction, proceedings for auction could not take place on the aforesaid dates. On 13-11-1971, Janki Vallabh, however, preferred objection that the property belonging to him could not be put to auction on the grounds, namely, (1) that the execution proceedings were barred by limitation; (2) that the property sought to be auctioned was a temple property; and(3) that the first execution having been dismissed for default on 14-4-1962, the properties could not be sold without getting them attached under the law. The executing court dismissed all these objections of the judgment-debtor on the ground that he failed to raise such objections at the time when the property was put to auction in March, 1971, and the sale was knocked down on 17-3-1971. In the opinion of the executing court these pleas were barred on the principle of constructive res judicata and therefore it held that the judgment-debtor was precluded from raising these objections at the time of the subsequent sale.

3. An appeal was preferred against the judgment of the executing court, but the learned Judge also upheld the view taken by the executing court and dismissed the appeal. It is in these circumstances that this second appeal has now been filed by the judgment-debtor.

4. Learned counsel appearing on behalf of the judgment-debtor confined his argument only to one point viz. that the properties could not be put to auction because they were not attached under Order 21 of the Code of Civil Procedure and the application of the principle of constructive res judicata under the circumstances of this case could not preclude the judgment-debtor to raise the objections about the competence of the court to put the properties belonging t

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