1. The question under appeal is a very short one and it is whether the order of the execution Court, by which it was held that the property sought to be sold was ancestral, operates as res judicata between the parties or not.
2. It appears that in execution of a mortgage decree the respondent applied for sale of the property mortgaged. The first question that had to be determined by the executing Court was the nature of the property sought to be sold, under Rule 107, Order 21, Civil P.C. The Court had to fix a date for the trial of the question, namely whether the property was ancestral or non-ancestral and to decide the question on that date. To aid itself in deciding the question it was open to the Court to call for a report from the Collector.' It appears that a report was sent for from the Collector and he reported that the property was ancestral. In the absence of any evidence to the contrary, the executing Court declared on 11th August 1928 that the property was ancestral and it directed that the decree be sent to the Collector for execution. The execution before the Collector did continue up to 23rd August 1929, i.e., for more than one year. On the last-mentioned date, the decree-holder madman application to the Collector asking him to strike off his execution application and intimated to him that he would get the property sold as non-ancestral.. Then the decree-holder made the present application out of which the appeal has arisen. On 28th August 1929 he made the second application for execution and did not ask the Court that it should review its previous order dated 11th August 1923. He however appended to the application certain copies of sale deeds with the idea of showing that the property had been acquired within re-cent years by the judgment-debtor and' it could not be ancestral property. The judgment-debtor objected to the execution saying among other matters that the order of 11th August 1928 operated as res judicata between the parties.
3. The learned Subordinate Judge in his order dated 21st December 1929 appears to have expressed the idea that the question as to the nature of the property could not be res judicata between the parties. He thought that because the revenue Court made a contrary report on the second application, he was entitled to set his previous judgment at naught. We are of opinion that the previous judgment should stand and must stand till it is set aside on appeal on review of judgment.
4. It was urged before us by the learned Counsel for the respondent that virtually his second application was for a review of judgment of the order dated 11th August 1928. We are however unable to take that view. An application for review of judgment must be made within 90 days of the passing of the judgment and it is only when sufficient cause is shown that the time can be extended under Section 5, Lim. Act. As already mentioned, there was no application for a review of judgment before the Court below, much less was there any statement of circumstances under which the application for review (if there was one) could not be made beyond the 90 days allowed by law.
5. We allow the appeal, set aside the order appealed against and -direct the Court below to treat the property ordered to be sold as ancestral and to have the decree duly executed by the Collector. The appellant will have his costs in this Court and in the Court below from the respondent.