Narasimham, J. - (1.) THIS is a revision petition against an order in a proceeding under Order 21, Rule 58, Code of Civil Procedure rejecting the Petitioner's prayer for release of the property from attachment. The disputed property consists of 8 annas share in the properties described in schedules Ga and Gha in O.S. No. 17 of 1960. To appreciate the rival contentions, it is necessary to refer briefly to the previous litigation between the parties. In T.S. No. 8 of 1952 in which the opposite party Puntimoni Bewa and other members of the opposite party (and their predecessors -in -interest) were parties, the claim of Puntimoni for 8 annas share in the properties involved in the litigation was decreed with costs on 21 -8 -1952 in the court of the Subordinate Judge of Balasore. The litigation was carried on appeal to the High Court in First Appeal No. 61 of 1952 and a Bench of this Court dismissed the appeal with costs on 15 -1 -1960. Thereafter in Execution Case No. 65 of 1960 Puntimoni Bewa put the decree for costs into execution and attached 8 annas share of the properties which then belonged to the remaining members of the opposite party.
(2.) IN the meantime, however, one Sadashib Sahu (the Petitioner herein) instituted another suit (O.S. No. 17 of 1960) impleading Puntimoni and other opposite parties or their successors in the previous litigation for a declaration that as the sister's son of one of the predeceased co -sharers he was entitled to 8 annas share in Ga and Gha schedule properties which had been attached. The learned Subordinate Judge by his judgment dated 4 -10 -1961 upheld his claim and held that no doubt he was entitled to 8 annas share, but that he was also 'in possession of that share, through one Dasarathi Sahu (who was Defendant No. 5 in that suit and opposite party No. 2 here). Armed with this judgment and decree in his favour Sadashib Sahu applied for release of the property under attachment. The learned Executing Court however allowed some evidence to be taken and held that Sadashib Sahu was not in possession of 8 annas share and that consequently that share was not liable to be released from attachment. Apparently, the learned Subordinate Judge, as the executing court, has not carefully read the judgment delivered by his predecessor on 4 -10 -1961 in O.S. No. 17 of 1960. In that judgment the question as to whether Sadasib Sahu had an interest and whether he was in possession of 8 annas share was directly in issue (is/me No. 8) and the learned Subordinate Judge held that he was in actual possession from 1946 exercising possession through Defendant No. 5. This finding will operate as res judicata both on title and possession as between the same parties. Puntimoni was the principal Defendant in this suit and once it is held, as against her that the 8 annas share which she has now attached belongs to Sadashib Sahu and that he was in possession of the same it is no longer open to her to contend before the executing court that Sadashib was not in possession and that his share should not be released from attachment.
(3.) FOR these reasons the civil revision is allowed, the order of the lower court is set aside, and it is directed that the property under attachment in M.C. No. 4 of 1962 shall be released. The Petitioner is entitled to costs. Hearing fee is assessed at Rs. 32/ - (Rupees thirty -two only).;