J.P. Jain, J.
1. This execution second appeal is by the judgment-debtor Mangilal and directed against the appellate order dated 19-4-74 of the Additional District Judge, Churu, by which he affirmed the orders of the execution court dated 17.3.73 and 27.4.73.
2. Mst. Nathi obtained a decree for maintenance against her husband Mangi Lal from the Court of Civil Judge, Churu. On 5.5.72 she applied for the execution of the decree. She took the execution for the amount of Rs. 4107 20 p. & she prayed that the judgment-debtor is drawing Rs. 253/- per month as his salary and, as such, one-third of his salary be attached in execution of her decree. On 6.5.72 the executing court passed an order that half of the amount beyond Rs 200/ of the judgment-debtor's salary be attached. The orders of attachment were issued accordingly. On 17.3.1973 on behalf of Smt. Nathi an application was submitted before the executing court saying that she was entitled to get one-third of the salary of the judgment-debtor attached under Section 60(1)(ia) of the Code of Civil Procedure. It was prayed that Rs. 84/ be got attached every month from his salary. A consequential modification of the order dated 6 5.72 was also sought. The learned executing court by its order dated 17.3.1973 realised the error and passed the order of attachment under Section 60(1)(ia) of the Code of Civil Procedure The Inspector of Schools was directed to send 1/3 of the salary of the judgment debtor every month till the decree of Smt. Nathi was satisfied. The judgment-debtor then by his application dated 27 4-73 invited the attention of the executing court that the court was not empowered to revise its earlier order dated 6-5 72 This contention did not find favour with the executing court. It dismissed the application of the judgment debtor and reiterated its order that the order attaching one-third of judgment-debtor's salary shall be complied with and the court's earlier order dated 6.5.72 shall be deemed to have been recalled The judgment (sic) or then challenged the orders dated 27.4. 23 & 17.3.73 in appeal before the Additional District Judge, Churu. The learned appellate court held that the decree under execution was clearly for maintenance and as such no order could be passed under Section 60(1)(i) and the attachment could only be ordered under Section 60(1)(ia) of the Code of Civil Procedure. According to the learned appellate court the executing court was within its power to recall the order dated 6.5.72. He attributed this power to the executing court to the inherent powers of the Court under Section 151, CPC. He dismissed the appeal. The order is the subject matter of appeal in this Court.
3. Mr. J.K. Singhi, learned counsel for the appellant has advanced two fold submissions in support of the appeal In the first instance be contended that the order passed by the executing court on 6-5-72 was a judicial order and appealable. If the decree-holder was aggrieved by this order, the learned counsel urged, an appeal could be filed against it. Since it was not done, it was not open to the executing court to pass the order on 17.3.73 in super session of its earlier order dated 6.5.72. This contention has no substance. Section 96 of the Code of Civil Procedure lays down that save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising origina1 jurisdiction to the court authorised to hear appeals from the decision of such court. 'Decree' has been defined under Section 2(2), Code of Civil Procedure. It reads as follows:
Section 2(2) 'decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit and may by either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
According to this definition the word ''decree' shall include a question determined under Section 47 of the Code of Civil Procedure.
4. I will refer to Section 47 and it is extracted below:
47 Question to be determined by the Court executing decree: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit,
(2) The Court may. subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Court.
Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to the suit.
From the perusal of Section. 47 it is abundantly clear that all orders passed by the executing courts that are no degrees and cannot be appealer against under Section 96 of the Code of Civil Procedure. Section 47 clearly lays down that question must arise between the particles to the suit and it must relate to the execution, discharge or satisfaction of the decree and it must be determined by the Court executing the decree. From the analysis of the provisions referred to above the order passed by the executing court on 6-5-72 is not a question determined by the executing court between the parties. As a matter of fact the execution application was submitted on 5-5-72. The office reported on that application on 6-5-72 and the order dated 6-5-72 was recorded in the order-sheet of that date, This order directing the attachment of the half of the amount beyond Rs 200/- from the salary of the judgment debt or was not a question which arose between the parties and determined by the court The order appears to have been passed in routine and in utter disregard of the specific provision of Section 60. Section 60(1)(i) does not apply to a decree for maintenance. When it was pointed out to the executing court that the decree-holder was entitled to seek the attachment of one-third of the salary of the judgment-debtor under Section 60(1)(ia), the court passed the necessary order on 17-3-73. In this view of the matter I am unable to accept the submission of Mr. Singhi that the order dated 6 5 72 was appealable & could only be set aside at naught by the appellate court.
5. The second submission of Mr. Singhi is that the order dated 6-5-72 operates as res judicata This argument does not stand much scrutiny While passing the order on 6-5-72 both the parties were not before the court and, as I have observed above, that it was passed in routine without reference to the provisions of Section 60, C.P.C., in complete disregard of the specific provision contained in Section 60(1)(ia) of the Code. The fundamental principle for invoking the doctrine of res judicata is that the parties must have been beard. In the present case the order sheet dated 6-5-72 does not even record the presence of the decree-holder or her counsel There was no notice to the judgment-debtor, as it was not necessary the decree having been passed within one year. That apart, I have held above that the order dated 6-5-72 was not appealable and in this view of the matter it cannot be successfully argued that the order dated 6 5 72 can at all operate as res judicata.
6. Learned counsel for the judgment-debtor has referred to several authorities to throw light on the principles of res-judicata and powers of the court under Section 151, CPC. In my opinion, they are not relevant and do not deserve to be discussed in the judgment.
7. No other point was argued. There is no force in this appeal and it is hereby dismissed. There will be no order as to costs.
8. Learned counsel for the appellant prays for leave to appeal in Division Bench. The prayer is refused.