Satyanarayana Rao, J.
1. 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 Munsiff of Kavali in E.A. No. 361 of 1944 in O.S. No. 379 of 1934.
2. 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 Section 47, 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, 1944. The fifth defendant filed E.A. No. 361 of 1944 on 20th of March, 1944, under Section 47 and Order 21, Rule 90, Civil Procedure Code. The petition was dismissed by the learned District Munsiff, and on appeal his decision was confirmed by the learned District Judge.
3. The Courts below have held that so far as the allegations in the petition are within Order 21, Rule 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 Ammechand Firm v. Tharachand Jayarupji Firm (1936) M.L.J. 71 , the bar applicable to suits under Order 9, Rule 9, Civil Procedure Code, does not apply to applications made in execution of a decree. Recently the High Court under its rule-making power under Section 122, Civil Procedure Code, made certain amendments to Orders 9, 21 and 43 of the First Schedule to the Code of Civil Procedure whereby Rule 15 of Order 9 was omitted and two Rules 104 and 105 were added after Rule 103 of Order 21. 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 Order 9, Rule 9 and Order 9, Rule 13, Civil Procedure Code. The provisions of Section 5 of the Limitation Act are also made applicable to such applications; but the bar contained in Order 9, Rule 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.
4. 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 analogous to the one contained In Order 9, Rule 9, Civil Procedure Code. I am not deciding the question whether these rules have retrospective operation as in either event I see no bar for enter-taining an application of the nature filed by the appellant under Section 47, even though the earlier application E.A. No. 644 of 1942 was dismissed twice.
5. The result is, the appeal is allowed and the orders of the Court below in so far as they dismissed the application under Section 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 Munsiff's Court, Kavali, for disposal on the evidence on record. The petition is specifically confined to the question under Section 47, Civil Procedure Code. As the appellant has failed in his contention relating to the allegations falling under Order 21, Rule 90, he is not entitled to costs in this Court. Leave refused.