A judgment in a declaratory suit under O. 21, R. 63, C. P. C., is not a judgment in rem and is not binding against the whole world.

Petitioner Radhabai is the objector in execution proceedings. Kadar Ali, the opponent, was a decree-holder who obtained a decree in Civil Suit No. 63 of 1945-46 from the Munsiffs court, Barwani, against Kundanlal who is the son of Radhabai, the petitioner. In execution of this decree Kadar Ali had attached four houses in Barwani. Radhabai in her objections, under Order 21 Rule 58 Civil Procedure Code, to the attachment of the four houses, stated that she had adopted Kundanlal when he was only a boy aged 12 years, and that on 14-2-1933 prior to the ceremonies of adoption, there was an agreement between Radhabai and Motilal, natural father of Kundanlal, whereby the latter was given certain cash, ginning factory, shop business, with one residential house.

The rest of the property consisting of several houses, land, moveable properties and ornaments was to remain with Radhabai as her absolute property. On this basis, the petitioner claimed the houses as her own and not liable to attachment in a decree against her adopted son. The objection was dismissed. Therefore, Radhabai filed a declaratory suit under O. 21, R. 63 Civil P. C. The District Judge, Barwani, decreed this suit. Kadar Ali, the decree-holder, did not file any appeal against that decision which became final.

2. Two other decree-holders Raoji Bhai and Balmukund obtained decrees in Civil Suit No. 32 of 1945-46 and Civil Suit No. 16 of 1945-46 against Kundanmal and got the same houses attached. Radhabai also filed objections which were dismissed and hence Radhabai filed a declaratory suit under O. 21 R. 63 against both the decree-holders, Balmukund and Raoj Bhai. The District Judge decreed the suit. The decree-holders went in appeal to the High Court where a Division Bench of this Court held the anti-adoption agreement to be invalid, and came to the conclusion that the whole property belonged to Kundanmal, the judgment-debtor. In effect, it reversed the decree of the District Judge, Barwani, and held that the four houses which had been attached in the decree were rightly attached.

3. On this decision Kadar Ali also applied for attachment and the same houses were again attached in his decree. Radhabai again filed objections against the attachment of the four houses contending that the houses having been held not liable to attachment in Civil Suit No. 1 of 1949, could not be attached again. The learned Civil Judge rejected this objection on 17-11-1953. The applicant erroneously filed an appeal to the District Judge, Mandleshwar, Barwani, but the District Judge rejected the appeal as being incompetent. The applicant, therefore, comes in revision to this Court against the order of the Civil Judge, First Class, Barwani.

4. After hearing the arguments of the learned counsel on the point, I have no doubt that the learned Civil Judge, Barwani, has fallen into an error regarding the judgment of the Division Bench of this Court in Balmukund v. Radhabai First Appeal No. 45 of 1948 (MB) (A) as a judgment in rem. The judgment in the decree of Balmukund and Raoji Bhai was only a judgment inter partes and not a judgment in rem.

That judgment was not a judgment in a suit between the parties to the present case and, clearly, cannot be regarded as res judicata; nor can it be considered to be a judgment binding upon the whole world. S. 41 of the Indian Evidence Act is exhaustive as to judgments in rem. The whole question of judgments in rem in India was exhaustively discussed in Yarakolamma v. Anakala Naramma 2 Mad HCR 276 (B), Kanhya Loll v. Radha Churn 7 Suth WR 338 (FB) (C) and Jogendra Deb Roy v. Funindro Dev Roy 14 Moo IA 367 at p. 374 (PC) (D). In these rulings, it was clearly specified what were judgments in rem in our country and what were not and the result had been embodied in S. 41 of the Indian Evidence Act. In 7 Suth WR 338 at p. 344 (C) Sir Barnes Peacock, C.J. observed :

"If a judgment in a suit between A and B that certain property for which suit was brought belonged to A t