1. This is an appeal from an order passed by the Deputy Commissioner of Kumaon exercising the jurisdiction of a civil Court. The appellants' objection to attachment of certain property, which they alleged to be ancestral property was dismissed on the ground that a previous decision between the parties operated as a bar to the objections subsequently raised.
2. The circumstances which led to the objection in question are briefly these The respondent Shyam Lal instituted a suit on foot of a promissory note purporting to have been executed by three persons; Sakhan Lal, and Bisant Lal and Bishambhar, who were impleaded as defendants 1 to 3. The son of defendant 1 and two sons of defendant 2 were also impleaded as parties on the allegation that the debt contracted by the first three defendants were such as bound the entire family. The sons, that is, defendants 4 to 6, contested the suit on the ground that the debt to which the promissory note related had been contracted for immoral purposes. The Court first struck an issue which threw the onus of establishing the unlawful character of the debt upon the sons. Subsequently, on a representation made by defendants 4 to 6, the Court altered the issue so as to throw the burden of proof on the plaintiff as regards the character of the debt. Thereupon, the plaintiff put in an application discharging the defendants 4 to 6 from the array of parties. The Court ordered that the suit be dismissed as against defendants 4 to 6, i. e., the sons of defendants 1 and 2. There can be no doubt that the plaintiff withdrew the suit as against defendants 4 to 6, whom he had originally impleaded; and accordingly the suit was dismissed as against them. Though Order 23, Rule 1, Civil P.C., was not referred to, there can be no doubt that the plaintiff meant to withdraw the suit against defendants 4 to 6 and the dismisal of it was based on the withdrawal. This happened on 12th April 1930. The suit went to trial as against defendants 1 to 3, and eventually a decree was passed against them on 8th July 1930.
3. The plaintiff had taken out attachment before judgment at an earlier stage of the suit. After the suit was withdrawn and dismissed as against defendants 4 to 6, they applied, on 2nd June 1930, that the property attached before judgment belonged to them and should be releised. In dismissing their objection the Court held that there was nothing to show that the property attached, or any part thereof, separately belonged to the minors. After a decree was passed against defendants 1 to 3, the decree-holder proceeded to have the property sold in execution. Defendants 4 to 6 again objected, on 30th June 1931, urging, inter alia, that the debt in respect of which the respondent had obtained the decree against defendants 1 to 3 was tainted with immorality and consequently the property which had been attached and was to be sold in execution of the decree, being joint family property, belonged to defendants 4 to 6 as well as defendants 1 to 3 and could not be sold.
4. The lower Court has dismissed this objection without enquiring into the question relating to the character of the debt on the short ground that the dismissal of the objection of defendants 4 to 6, dated 2nd June 1930 operated as a bar to the subsequent objection being entertained. Apparently the ground on which the order under appeal proceeds is that it was the duty of defendants 4 to 6, who are the appellants before us, to have raised the question of the debt having been contracted for immoral purposes in their first objection of 2nd June 1930 and that they, having omitted then to raise that question are now barred from aging the same question. The learned advocate for the respondent has referred to a number of authorities in support of his contention that the appellant's omission to raise the question which they now desire to be investigated in their first petition of objection dated 2nd June 1930 bars them from raising it at a subsequent stage. We have examined all those cases and are satisfied that none of them supports his contention. On the other hand, our attention has been drawn to Sheo MangaI v. M. Hulsa AIR 1922 All 413, in which a Division Bench of this Court has held that the priniciple of constructive res judicata does not apply to execution proceedings. It is true that, if a question has been raised and decided by implication, the decision may operate as res judicata; but if the question was never raised and for that reason not decided, it cannot be said that the party which might have raised such question is subsequently debarred from doing so. Moreover, we are clearly of opinion that the appellants were not called upon to raise the question as regards the immorality of the debt by their application of 2nd June 1930. Up to that time the suit against their fathers was pending and no decree was passed till 8th July 1930. Though they had objected to the attachment before judgment being continued as against their interests in the property, it was wholly unnecessary for them to raise the question at that stage that the debt, which might or might not be decreed against their fathers had been contracted for immoral purposes. We hold that the appellants are not barred by any rule of law from now raising the question that the debt, to which the promissory note on foot of which decree has been obtained by the respondent, was tainted with immorality.
5. The next question is whether it is open to the appellants to have that question (sic) in execution proceedings. We are relieved of the necessity of deciding this question, as the learned advocate for the respondent concedes that the appellants can raise a question of this nature under Section 47, Civil P.C. We may refer to the explanation appended to that section, which provides that for the purpose of that section a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. The appellants were defendants 4 to 6 in the suit in which the decree has been passed, and the suit was dismissed against them. The aforesaid explanation therefore applies in terms to the circumstances of this care.
6. The lower Court having thrown out the appellants' objection on a preliminary ground and as we are of opinion that the appellants objection should have been tried out on the merits, we set aside the order appealed from and remand the case to the Court below with the direction that their objection may be enquired into on the merits and according to law. The appellants shall have their costs of this appeal.