VINOD K.SHARMA,J - (1.) THIS Execution Second appeal raises the following substantial question of law :- "Whether withdrawal of objection petition on an earlier occasion would operate res judicata in the subsequent objections filed against the execution of the decree ?"
(2.) THE appellant-judgment debtor filed objections against the attachment and sale of the only residential house of the judgment debtor. The said objections were contested by the Decree holder on the ground that the house was lying uninhabited at the time of attachment and the objector as well as his son were not occupying it for their residence and therefore, it was claimed that the said house was rightly attached. It was also claimed that the articles in possession of the judgment debtor were attached and the objections filed by the judgment debtor were withdrawn by him and therefore, he was estopped from making further objection to the attachment and that were liable to be dismissed. On the pleadings of the parties learned Executing Court was pleased to frame the following issues :- 1. Whether the attached house of the JD is liable to be released in view of the objection of the JD ? OPO 2. Relief. Learned Executing Court though made observation on merit to hold that the attached house was not the only residential house in view of the fact that in the statement, the objector had nowhere made an assertion to this effect. It was also observed that the appellant had admitted that there was a house in the abadi but that was said to be ancestral house.
(3.) HOWEVER , it may be noticed that the reason for deciding issue No. 1 against the appellant was that on an earlier occasion similar objections were filed by the appellant on which after framing the issue the appellant had failed to lead any evidence. Said objections were withdrawn as he had offered to make the payment of the decretal amount in instalments. The learned Executing Court, therefore, came to the conclusion that subsequent objections filed by the appellant were barred under the principle of res judicata. The appeal filed against the judgment also failed as the learned District Judge also came to the conclusion that the conduct of the appellant Judgment Debtor showed that he was trying to delay the execution of the decree on one pretext or the other. Withdrawal of objections was held to be binding on the appellant and the findings of the learned Executing Court that subsequent objections were hit by constructive res judicata were affirmed. Consequently, the appeal was dismissed. Judgment of Allahabad High Court in the case of Kishore Joo v. Gurman Behari Joo Deo, AIR 1978 Allahabad 1 was not followed by observing that the said judgment does not apply to the facts of the present case.;