1. Judgment-debtors are the appellants. In T.M.S 181 of 1949 in the Court of the Munsif, Berhampur, final mortgage decree was passed on 28-8-1954. The decree was transferred in favour of one Kalu Podhan by an assignment in writing. The transferee-decree-holder executed the decree in E.P 89 of 1955. On his death his legal representatives were substituted. Some of the transferor decree-holders filed an objection in that execution proceeding against the genuineness and the validity of the transfer. Payment of consideration under the deed of transfer was challenged. It was also asserted that the original decree-holders were Konds (aboriginals — hill tribes) and that deceased Kalu Podhan, who was looking after T.M.S 181/1949, might have utilised some blank papers containing their signatures and thumb marks for the creation of the deed of transfer without their knowledge and consent. Despite this objection, the transferee-decree-holders allowed the execution proceeding to be dismissed for default on 17-8-1956 when the Executing Court passed the following order:

“The lawyer for the D. Hr. IC files memo of no instructions. The decree-holder's lawyer files Hajira. The E.P is dismissed for default.”

2. Clearly the transferee-decree-holders were absent and did not pursue the matter while the lawyer for the transferor-decree-holders was present in Court. The original decree-holders filed E.P 98 of 1958 which was dismissed as not pressed on 30-10-1958. A reference to this proceeding has been made incidentally as it has no bearing on the question in issue.

3. The transferee-decree-holders again levied E.P 14 of 1959 on 17-1-1959. Some of the original decree-holders and the judgment-debtors filed separate objections on identical grounds. The essence of the objections was that the deed of transfer was not genuine. Its execution and passing of consideration thereunder were disputed. A further plea was taken that E.P 14/1959 was barred by the principle of constructive res judicata as the transferee-decree-holders failed to prove the transfer in E.P 89 of 1955. The learned Munsif passed the following order on 20-11-1959, the date fixed for hearing:

“Hazira filed by the original decree-holders; Advocate for the judgment-debtors and pleader for the original decree-holders are present and ready for enquiry. No steps taken by the decree-holders (transferees). None appears. In view of the objections taken by the contesting parties, the truth and the validity of the transfer of the decree is not established by the alleged transferee who has filed this execution petition. It is therefore dismissed as not maintainable by him.”

4. From the aforesaid order it is manifest that the transferee-decree-holders were asked by the executing Court to establish the factum of transfer. A date was fixed for hearing and when the transferee-decree-holders failed to appear, though the transferor-decree-holders and the judgment-debtors were ready, the executing Court dismissed the execution proceedings as not being maintainable at the instance of the transferee-decree-holders. The transferee-decree-holders have levied the present E.P 329 of 1959 on 11-12-1959.

5. The transferor-decree-holders and the judgment-debtors advanced the objection that the application made in E.P 89/55 and E.P 14/1959 were not in accordance with law under Article 182(5), Limitation Act, and, as such, would not save limitation, and the present execution proceeding is not maintainable being barred by the principle of constructive res judicata. The Courts below concurrently found that the transfer was genuine. The executing Court dismissed the application holding that the previous executions were not in accordance with law and the present execution proceeding is barred by limitation. The learned lower appellate Court, however, held that the previous applications in execution were in accordance with law and would save limitation. It accordingly allowed the appeal and directed the execution proceeding to continue. The question of constructive res judicata has not been considered by any of the Courts below. Against the judgment dated 11-7-1962 of the learned Additional Subordinate Judge, this miscellaneous appeal has been filed.

6. Mr. N.V Ramdas advanced two contentions—(i) that the applications in E.P 89/1955 and E.P 14/1959 are not in accordance with law and would not save limitation; and (ii) that E.P 329/1959 is not maintainable being hit by the principle of constructive res judicata.

7. To appreciate both the contentions, it is necessary to analyse O. 21, R. 16 of the CPC. This Rule, as amended by the Orissa High Court, may be quoted so far as relevant:

“Where a decree ………… is transferred by assignment in writing ……… the transferee may apply for execution of the decree to the Court which passed it ………… and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holders:

Provided that where the decree ………… has been transferred by assignment, notice of such application shall be given to the transferor unless an affidavit of the transferor admitting the transfer is filed with the application and the decree shall not be executed until the Court has heard his objection (if any) to its execution.”

8. The rule does not requires that there shall be a prayer in the execution application for recognition of the transfer. Before the Orissa amendment, both the transferor and the judgment-debtor were to raise objection and the Court had to hear their objection before directing the decree to be executed. After the Orissa amendment, only the objection of the transferor is to be heard.

9. When the execution application is filed making mention therein about the factum of transfer, the application is in accordance with law. It in only when the Court to which the application is made requires the applicant to give evidence in support of the transfer, and that the Court is satisfied that the applicant is not a transferee, that the execution proceeding at his instance cannot be maintainable and is liable to be dismissed. There is no substance in the argument that unless the transfer is proved, the execution application would not be in accordance with law. The expression “made in accordance with law” in Article 182(5), Limitation Act, means “in accordance with law relating to the execution of the decree” Govind Prasad v. Pawankumar, AIR 1943 PC 98, Krishna Somayajulu v. Annappa, AIR 1957 Andh Pra 66 (FB) supports such a view. I am clearly of opinion that the application made in E.P 89/55 and E.P 14/59 were in accordance with law.

10. But the more important question for consideration is whether the orders passed in those execution proceedings would be a bar to the present execution proceeding on the principle of constructive res judicata. It is needless to examine the order dated 17-8-1956 passed in E.P 89/55 as, in my opinion, the order dated 20-11-1959 passed in E.P 14/59 constitutes a bar. On 20-11-1959, the Court clearly passed orders that as the transferee-decree-holders failed to establish the transfer in favour of deceased Kalu Padhan, they had no locus standi to execute the decree. As between the parties this is a conclusive decision. Though in the present execution proceeding there is a concurrent finding that the transfer was genuine and valid, the transferee-decree-holders are precluded from taking resort to the transfer in view of the decision to the contrary passed by the executing Court on 20-11-1959.

11. That the principle of constructive res judicata applies to execution proceedings is not disputed. There is also no dispute that the principle of res judicata is much wider than the principle enunciated in Section 11 of the CPC. Under Section 11 of the CPC, Explanation V, any relief claimed in the plaint which is not granted by the decree shall for the purpose of this section be deemed to have been refused. By order dated 20-11-1959 the Court shall be deemed to have refused to recognise the transfer and allow execution of the decree at the instance of the transferee decree-holders.

12. Mr. Patnaik, however, contends that this principle of res judicata has no application as the order dated 20-11-1959 was not passed after contest but was ex parte in the absence of the transferee-decree-holders. He places reliance on Hirabai v. Jiwanlal Palode, AIR 1954 Nag 234 and Biswanath Kundu v. Subala Dassi, AIR 1962 Cal 272. The matter was not decided in the former decision. The latter decision undoubtedly lends some support to his view.

13. On this question there is some conflict of authority. So far as this Court is concerned, a consistent view has been taken that adjudication made on a question, expressly or impliedly, in I presence of one of the parties would constitute res judicata: Simhadri Sahu v. Balaji Padhi, AIR 1955 Orissa 81 and Sori Dibya v. Kanhucharan Rath, AIR 1951 Orissa 86. The principle behind this line of argument has been admirably put in Ramnarain v. Basudeo*, AIR 1947 Pat 298. Their Lordships observed:

“It has always been recognised in warfare that if one side flees and leaves his opponent in command of the battle field, he stands defeated. But if both sides retire, there has been no decision and neither can claim to be the victor. Exactly the same principle should be applied to the mimic warfare of the Courts.”

14. Mr. P.V Ramdas recognises the aforesaid principle. But he attempted to differentiate the line of cases in which the objections of the judgment-debtors had been overruled in their default in presence of the decree-holder from the cases where the decree-holder is in default. The distinction has no legal basis. The principle of res judicata has as much application to a defendant or a judgment-debtor as to a plaintiff or a decree-holder. The distinction is without difference and is not well founded in law. Even in Lachiram Sathokchand Ameechand Firm v. Firm Tarachand Jayarupji, AIR 1937 Mad 289, which decided in that particular case that there was no res judicata in the default of the decree-holder, his Lordship observed:

“In the case of dismissal of execution petitions for default or on the ground that they are not pressed, the only thing that is decided is that the application is dismissed, and there is no bar in the way of fresh application being made, if necessary the very next day with the same prayer. This is settled law, and unless it can be said that there was a decision or adjudication which either directly decided the question on which the parties were at issue, or which must be deemed to have impliedly decided it on the ground that the order could not have been made without such implied decision having been arrived at, the rule of res judicata, in my opinion cannot operate or apply.”

15. The latter part of the observation makes it clear that there can be res judicata if the previous order was passed in default of the decree-holder in the presence of the judgment-debtor if there was an adjudication either expressly or impliedly. The order dated 20-11-1959 made such an express adjudication that the execution application was not maintainable as the transfer was not proved. Reliance was also placed by Mr. P.V Ramdas in Dhonkal Singh v. Phakkar Singh, ILR 15 All 84 (FB). The observations made by their Lordships are very apposite and do not support his extreme contention. Their Lordships observed:

“It follows that in considering the effect of an order passed by a Court in a proceeding for execution of a decree we must be guided by the reasons stated for making the order and not by the mere phraseology employed in the formal direction which concludes the order. In other words, we must in such cases ascertain whether an order that an application “be dismissed”, “be struck off”, “be shelved”, or “be sent to the record room” was passed on judicial adjudication that the applicant's right to have his decree executed at all was gone by reason of limitation or some other ground, which, if it existed, would disentitle him to have the execution of the decree on any application which he might make, or was made on some ground which did not go to the merits and to his right to execute his decree, as for instance, his application not having been made in compliance with Section 235 (O. 21, R. 11), or Section 236 (O. 21, R. 12), or Section 237 (O. 11, R. 13) of the CPC, or his having failed to deposit talabana or to procure the attendance of his witness or to perform any other act necessary to the further progress of the application. Even in the three latter cases there might possibly be, in my opinion, an adjudication on the merits or on the materials before the Court which might finally decide the rights of the parties so far as any question relating to the execution of the decree was concerned.

When such an order in proceedings for the execution of the decree is based on an adjudication, whether erroneous or not, on the merits, whether the phraseology employed is “be dismissed”, “be struck off” or “be shelved”, it is, in my opinion, until it is reversed or set aside, a bar to any subsequent application for the same purpose, but when it is not based on adjudication on the merits, it is not to be considered as a bar.”

16. The legal position could not have been elucidated in any better manner. The aforesaid exposition brings out the essential principle to be invoked. Courts are not to be guided by the formality of the user of particular phraseology. It is to be seen if there is an adjudication on the merits even though the phraseology used is ‘dismissed’. Even in mere dismissal of an execution application for non-payment of process fee or failure to procure attendance of witnesses, the case may be treated to have been decided on merits provided there has been such an adjudication on the materials on record. To avoid confusion it is, however, necessary to clarify the position that in every case of dismissal of an execution application in the absence of the decree-holder and in the presence of the judgment-debtor, there will be no constructive res judicata in the next execution application. For instance, a decree-holder may file an execution application which is in accordance with law to constitute a step-in-aid and then get it dismissed for non-prosecution after appearance of the judgment-debtor, on getting notice under Order 21, R. 22 of the CPC, when the judgment-debtor raises no objection to the executability of the decree in any manner. In such a case, though the dismissal of the execution application is for default of the decree-holder in the presence of the judgment-debtor, a second application is not hit by res judicata.

17. In this case, there has been such an adjudication on the merits on 20-11-1959 in the absence of the transferee-decree-holders. The present execution case is accordingly barred by the principle of constructive res judicata and must be dismissed. The appeal is accordingly allowed and the execution case (E.P 329/1959) is dismissed as not maintainable in law. In the circumstances, parties to bear their costs throughout.

AH/O/D.V.C

18. Appeal allowed.