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" When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under s. 47, and not in a separate suit ".

(1) A.I.R. 1959-Pb. 440, 447.

(2) A.I.R. 1956 $.C. 87, 91.

See also J. Marret v. Mohammad Shirazi & Sons (1) where the facts were that an order was made by the Executing Court directing contrary to the terms of the decree the payment of a certain fund to the decree-holder. The Madras High Court in K. Mohammad Sikri Sahib v. Madhava Kurup (2) held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment order against a tenant, the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree, could be set aside under s. 151 of the Code of Civil Procedure. The prohibition is equally puissant in the present case and s. 47 read with s. 151 would be equally effective to sustain the order of redelivery made in favour of the respondent. The applicability of res judicata and the defenses of waiver and estoppel were also raised by the appellants. The contention of res judicata was based on the plea taken by the respondent in his written statement, dated March 11, 1946, where he pleaded that the civil court had no jurisdiction to order eviction because of the House Rent Control Order, 1945, to which the reply of the appellants was that considering the nature of the suit and the consequential remedy that they were seeking, the plea of jurisdiction of the court was not open to the respondent. Thereupon the trial court raised a new 'issue " whether this court has jurisdiction to try the suit, in view of the House Rent Control Order " which was decided against the respondent and a decree in favour of the appellants was passed on August 23,1945. This judgment formed the basis of the argument before us that the plea of in-executability of the decree could not be raised because it was barred on the principle of res judicata. The plea of res judicata is not available to the appellants as the prohibition on account of the House Rent Control Order was not against the passing of the decree but against its execution and therefore the objection to the executability could only be taken (1) A.I.R. 1930 P.C. 86, (2) A.I.R. 1949 Mad. 809.