- (1.) THIS appeal had previously been decided by me on 8 -8 -1962. But the decision was set aside by me at the instance of one of the parties in Misc. Civil Case No. 128 of 1963, dated, 11 -9 -1963 on the ground that one of the respondents had died prior to the delivery of the order. Therefore, the appeal has been heard again after substitution of legal representatives of the deceased respondent.
(2.) THIS appeal under section 47, Civil Procedure is by the decree -holder against the order, dated, 9 -1 -1962 passed by Shri S. S. Pancholy, Additional District Judge, Barwani, in Misc. Civil Appeal No. 17 of 1961, arising out of the order, dated 15 -3 -1961, passed by Shri L. P. Gupta, Civil Judge Class II, Anjar in execution case No. 55 of 1959 arising out of the decree, dated 2 -9 -1950 in Civil Suit No. 91 of 1949. A money decree for Rs. 571 -9 -6 was passed in favour of the appellant against Shobharam, the father of the first respondent. In execution of the said decree, the respondents' agricultural land, having an area of 25.97 acres was attached. The land, prior to the coming into force of the Madhya Pradesh Land Revenue Code, 1959, was the Pakka tenancy land, which was governed by, section 71 of the M. B. Land Revenue and Tenancy Act, 1950; and which under section 158 (b) of the M. P. Land Revenue Code, 1959 became their Bhumiswami land. The M. P. Land Revenue Code, 1959 came into force with effect from 2 -10 -1959 during the earlier execution proceedings. On behalf of the judgment -debtors an objection was raised that in the previous execution an order had been passed by the Collector holding that the land could not be attached and sold in execution of the money decree on account of a bar provided by section 71 (2) of the M. B. Land Revenue and Tenancy Act. 1950. It was, therefore, urged that the said order would operate as resjudicata so as to bar a subsequent attachment and sale of the said property. The second contention of the judgment -debtors was that they were entitled to protection granted by sub -section (2) of section 71 of the M. B. Land Revenue and Tenancy Act, 1950, under which 15 acres of land of every Pakka tenant was exempt from attachment and sale.
(3.) THE learned Judge of the executing Court dismissed the judgment debtors objection holding that the previous order of the Collector or of the executing Court did not operate as resjudicata. It was also held that the judgment -debtors were not entitled to protection afforded by section 71 (2) of the M. B. Land Revenue and Tenancy Act, 1950, but only to the exemption granted by Section 165 (7) (a) of the M. P. Land Revenue Code. 1959, which exempts only 10 acres of land from attachment and sale.;