The sale of a decree for costs in execution of another decree is not void under Rule 178 of the Civil Rules of Practice, and an order passed in an earlier stage of execution proceedings operates as constructive res judicata at a later stage of the same execution proceedings.

UMAMAHESHWARAN, J. :- This appeal is brought by the 53rd defendant in O.S. No. 86 of 1921, Sub Court, Madurai, as against the judgment and order of Chandra Reddy, J. in C.M.A. No. 124 of 1947 confirming the judgment and order of the Subordinate Judge of Madurai, in E. A. No. 393 of 1948 in E.P. No. 101 of 1945 in O.S. No. 86 of 1921. In E.P. No. 291 of 1943 in O.S. No. 268 of 1933 on the file of the District Munsifs Court, Madurai Town, the-decree for costs in O.S. No. 86 of 1921 was brought to sale, and the respondent herein who became the court auction-purchaser applied for execution of the decree for costs in E.P. No. 101 of 1945 and the appellant herein who was the only contesting respondent filed his objections on 11-9-1945. The right of the respondent to execute the decree was recognised on 8-10-1945. When the immoveable properties belonging to the appellant were attached on 15-10-1945, a claim petition was filed by the appellants wife setting up her title to the properties. The claim petition was allowed, holding that she had a life interest in the properties attached. The respondent thereafter sought to bring the vested remainder of the appellant to sale. The appellant filed objections on 23-1-1946 stating that he had no interest in the attached properties. On 26-1-1946, the Court passed the following order :

"The only objection is that the judgment-debtor has no interest. If so, he will not be affected, by the sale and indeed he will stand only to gain by the property of somebody else being sold to discharge his liability. There is no other objection stated by the learned counsel. Proclaim and sell on 11-3-1946."

On 19-8-1946 the appellant herein filed E.A. No. 393 of 1946 in E.P. No. 101 of 1945 praying that the Court may be pleased to receive his statement raising further objections and dismiss the execution application. The main objection sought to be raised was that the respondent acquired no rights under the court sale as the decree for costs in O.S. No. 88 of 1921 could not be brought to sale in execution of the decree in O.S. No. 268 of 1933, District Munsifs Court, Madurai Town, under Rule 178 of the Civil Rules of Practice. The respondent herein opposed the application on the ground that the petitioner was barred by constructive res judicata from seeking to reopen the order made on 8-10-1945 recognising his right to execute the decree and that the court sale was not prohibited by law.

2. The Subordinate Judge, Madurai, dismissed the application on the ground that as his objections were heard and execution was permitted to proceed by order dated 26-1-1946, he was not entitled to raise further objections to the execution. On appeal, Chandra Reddi, J. confirmed the judgment of the Subordinate Judge upholding the plea of constructive res judicata. On the question as to whether the court sale was prohibited under Rule 178 of the Civil Rules of Practice, no finding was recorded by the learned Subordinate Judge or by Chandra Reddi, J. The appeal is filed under Clause 15 of the Letters Patent by the judgment-debtor against the decision of Chandra Reddi, J.

3. The learned advocate for the appellant raised two contentions, namely, that the decree for costs against him in O.S. No. 86 of 1921 being a money decree could not be brought to sale under Rule 178 of the Civil Rules of Practice in execution of O.S. No. 268 of 1933 and that the sale was void and conferred no rights on the court auction-purchaser, the respondent herein, and that the principles of constructive res judicata do not apply in respect of orders passed in the course of the same execution proceedings and so long as the decree is not executed and satisfied. Rule 178 of the Civil Rules of Practice runs in the following terms :

"No decree shall be ordered to be sold in execution of another decree."

The learned advocate for the appellant relied upon the decisions in - Tiruvengada Chari v. Vythilinga Pillai, 6 Mad 418 (A); - Vithaldas Prabhu v. Subraya Man