H.G.Mishra, J.

( 1. ) This is an appeal against the order passed by the Addl. District Judge on 306-1976, whereby the order passed by the Executing court on 25-10-1976, rejecting objection about attachability and saleability of the house in dispute, in view of the provisions placed in Section 60 (1) (c) of the Code of Civil procedure, has been affirmed.

( 2. ) Facts material for the decision of this appeal are as under: The decree-holder-respondent-herein obtained a money decree against the judgment-debtor-appellant-herein in Civil Suit No. 38B of 1971, from the Court of Civil Judge, Class II, Neemuch, He put this decree in execution, the execution case being 197 of 1972, and attached the house belonging to the judgment-debtorappellant on 30-4-1975. Thereafter a notice under Order 21, Rule 66, C. P. C. was issued for 5-8-1975. However, the said notice was served by affixure on 25-7-1975, as per the report of the process-server dated 26-7-1975, On 5-81975 the Executing Court passed an order to the effect that service of notice under Order 21, Rule 66, C. P. C. has been effected on the judgment-debtor. Now, the decree-holder wants to put to auction the said house belonging to the judgment-debtor, which has already been attached. Accordingly, the Court directed issuance of a proclamation of sale for 29-9-1975 and fixed 30-9-1975 as date of hearing in the case. The judgment-debtor-appellant submitted an application on 8-8-1975, wherein it was contended that attachment has not been effected in accordance with law and that the house attached is immune from sale by virtue of the provisions placed in the proviso (c) to Section 60 (1), C. P. C. as it is occupied by the judgment-debtor, who is an agriculturist and is being used for agricultural purposes. This application was opposed by the decree-holder inter alia on the ground that it is barred by the doctrine of constructive res judicata. This objection found favour with the Executing Court and by order dated 26-10-1975 the Executing court rejected the application as being barred by constructive res judicata. Aggrieved by this order the judgment-debtor preferred an appeal, which has been dismissed. Hence this appeal.

( 3. ) In this appeal it was contended by Shri D. D. Vyas, learned counsil for the judgment-debtor-appellant that the doctrine of constructive res judicata has been erroneously applied, because the judgment-debtor has right to object to the saleability of the house in dispute at any time prior to its sale. Shri V. K. Dube, learned counsel for the respondent argued in support of the impugned judgment and decree. Having heard the learned counsel for the parties. I have come to the conclusion that this appeal deserves to be allowed to the extent indicated hereinafter.

( 4. ) In this case, as stated above, the Executing Court had ordered issuance of notice under Order 21, Rule 66. C. P. C. for settlement of terms for proclamation of sale by public auction. The notice was served by affixure, although at the relevant date, i. e. on 25-7-1975, it was reported that the judgment-debtor had gone out. However, the question of invalidity of service of the notice under Order 21, Rule 66, C. P. C. has lost significance because on 58-1975 the judgment-debtor along with his counsel were present in the Court and it was in their presence that the Executing Court had passed the order directing issuance of the warrant for sale, as stated above.

( 5. ) Now, the question which crops up for consideration is whether the judgment- debtor-appellant had right to submit objection against attachability and saleability of the house in question after passing of the order dated 5-8-1975 by the Executing Court. The law On the point has been laid down in Balkrishna v. Changdeo (AIR 1943 Nag 330), thus:

"In Rukhmabai v. Ramchandra, 21 Nag LR 23 : (AIR 1925 Nag 320). which was cited with approval by Bose, J., in Mt. Laxmibai v. Sevakram : ILR (1936) Nag 30 : (AIR 1936 Nag 123) it was held that objection