(Prayer: Appeal (disposed of on 10-11-1947) against the order of the District Court of Nellore, dated 17-10-45 in A.S. 159 of 1945 preferred against the order in E.A. No. 361 of 1944 in O.S. No. 379 of 1934 District Munsif Court, Kavali.)

This is an appeal by the fifth defendant from the order of the learned District Judge of Nellore dismissing his appeal against the order of the learned District Munsif of Kavali in E.A. No. 361 of 1944 in O.S. No. 379 of 1934.

The plaintiff obtained a decree for partition and for future profits against defendants 1 to 5. On 10th April 1942 the plaintiff gave up the relief granted under the decree for payment of mesne profits against the fifth defendant. Thereafter the plaintiff attached some properties in E.P. No. 78 of 1940. Then the fifth defendant filed E.A. No. 644 of 1942 claiming that the properties belonged to him and not to the first defendant and were not liable to be sold. This petition was filed by him under Sec. 47 of the Civil Procedure Code which was dismissed for default on 12th May 1943. It was restored on 17th August 1943 in E.A. No. 520 of 1943 and the original petition was again dismissed for default on 13th November 1943. The property was thereafter sold on 7th February 194

4. The fifth defendant filed E.A. No. 361 of 1944 on 20th of March 1944 under S. 47 and under O. 21, R. 90 of the Civil Procedure Code. The petition was dismissed by the learned District Munsif, and on appeal his decision was confirmed by the learned District Judge.

The Courts below have held that so far as the allegations in the petition are within O. 21, R. 90 Civil Procedure Code the petition is out of time and that there is no substance in the grounds on which the sale is sought to be impeached. This point is not pressed in this Court. The only ground urged in this appeal is that the view of the Courts below that the petitioner is barred by res judicata from raising the contention that the property sold belonged to him by reason of the orders in E.A. No. 644 of 1942 is wrong. This contention of the learned Advocate for the appellant is well founded as the order in E.A. No. 644 of 1942 was only an order dismissing the petition for default and not on merits. As pointed out in the decision in Lachiram Santhokchand Ameechand Firm v. Tarachand Jayarupji Firm (7

1. M.L.J. 490=44 L.W. 565), the bar applicable to suits under O. 9, R. 9 Civil Procedure Code does not apply to application made in execution of a decree. Recently the High Court under its rule-making power under S. 122 Civil Procedure Code made certain amendments to Orders 9, 21 and 43 of the First Schedule to the Code of Civil Procedure whereby R. 15 of O. 9 was omitted and two Rr. 104 and 105 were added after R. 103 of O. 2

1. The effect of these amendments is that if an application in execution is dismissed or an order ex parte is passed against the respondent in an execution application, liberty is given to the party against whom the order is made to have it set aside on the analogy of O. 9, R. 9 and O. 9, R. 13 Civil Procedure Code. The provisions of S. 5 of the Limitation Act are also made applicable to such applications; but the bar contained in O. 9, R. 9 preventing a plaintiff whose suit has been dismissed for default from instituting a fresh suit in respect of the same cause of action is not made part of these rules.

The result is, a decree-holder whose execution application has been dismissed for default is entitled with immunity to make any number of applications so long as they are in time. It is a point for consideration by the Rule Committee whether it will be proper to add to these rules a provision analogus to the one contained in O. 9, R. 9, of the Civil Procedure Code. I am not deciding the question whether these rules have retrospective operation as in either event I see no bar for entertaining an application of the nature filed by the appellant under S. 47, even though the earlier application E.A. No. 644 of 1942 was dismissed twice.

The result is, the appeal is allowed and the orders of the Court below in so far as they dismissed the application under S. 47 without deciding the question whether the property really belonged to the fifth defendant or belonged to the first defendant are set aside. The petition is remanded to the District Munsifs Court, Kavali, for disposal on the evidence on record. The petition is specifically confined to the question under S. 47 Civil Procedure Code. As the appellant has failed in his contention relating to the allegations falling under O. 21, R. 90, he is not entitled to costs in this Court. Leave refused.