1. We think the District Judge is right in holding that the 1st appellant has failed to prove the agreement set up by him. His case is that in December 1911 the decree-holder came to his village to see the properties and in January 1912 he offered the lands at Rs, 250/- per acre of wet-land and Rs. 80 per acre of dry-land. He swore that the decree-holder told him that he proposed to sell some of these lands after his purchase to Subba Reddi and Ranga Reddi and Exhibit A according to him is a letter with reference to this conversation. In our opinion Exhibit A not only does not support but is against his contention. It shows further that the decree-holder did not want to purchase the lands. If he wanted to get the lands himself he would undoubtedly have taken steps to enforce the decree soon after the amount became payable to him. We are not satisfied that the letter Exhibit B was written in accordance with instructions given by the respondent. The affidavit Exhibit K also is not in support of the Petitioner's case. In these circumstances we are not prepared to believe the witness whom the Judge has disbelieved and we confirm his finding on this point.
2. The next question is whether the respondent is entitled to execute the decree at all. It is contended that it is only a preliminary decree and that according to the decision of the Privy Council, in Ashfag Hussain v. Gauri Sahai I.L.R. (1912) A. 264 which has been followed by Miller and Sadasiva Aiyar JJ., in C.M.S.A. No. 86 of 1910, Benson and Sundara Aiyar JJ., in C.M.A. No. 269 of 1911, a preliminary decree is not capable of execution and it is only the decree absolute under Rule 5, Order 34 that can be executed. In this case it is clear that no decree absolute under Rule 5 had been passed, but we think it is unnecessary to decide this question, because this contention is not available to the appellants. On the decree-holder's application for the execution of the decree notice was issued to the judgment-debtors (appellants) and an order was passed directing the sale of the property; no objection was taken to the sale on this ground. It has been repeatedly held that even though a relief may not have been granted by the decree yet if in execution proceedings a Court holds that a party is entitled to such relief under the decree it is not open to the parties afterwards to contend that no such relief has been awarded and the matter is res judicata. We are therefore of opinion that in this case it is not open to the appellants to plead that there is no decree under which the properties could be sold. We must therefore disallow this contention and we dismiss the appeal with costs.