Patra, J.:— This is an appeal against an order of the First Additional Subordinate Judge, Cuttack setting aside an order of the Munsif. Jaipur dismissing an application under Section 47 of the CPC (hereinafter referred to as the Code) filed by the judgment-debtors. The facts of the case may be set down in chronological order as follows:;

4-5-1950 — Suit filed by the appellants for possession was dismissed by the Munsif. 11-12-1951 — Appellate Court set aside the judgment of the trial Court and decreed the suit with costs. 10-4-1954 — First Execution Case No. 158 of 1954 filed by the decree holder for recovery of possession and costs. 27-11-1956 — Second Appeal filed by the judgment-debtor respondents dismissed by the High Court. 28-2-1958 — Second Execution Case No. 72 of 1958 filed.

5-4-1958 — Execution Case (No. 72/58) dismissed. 25-12-1960 — Judgment debtor No. 7 on his behalf and on behalf of all judgment debtors is alleged to have paid Rs. 5/- to the decree-holder towards the decree. 14-8-1962 — Third Execution Case No. 195 of 1962 filed. 27-9-1962 — Execution Case (No. 195/62) dismissed. 18-12-1962 — The present Execution Case No. 339 of 1962 filed by the decree holder. The Court directed the same to be put up on 2-1-63 with office note. 2-1-1963 — Authentication fee paid by the decree-holder. Case admitted. Notice under Order 21, Rule 22 of the CPC issued fixing 24-1-63 for return. 24-1-1963 — Service return received. Service proved and accepted as sufficient. Ordered to be put up on 1-2-1963 when decree-holder to take further steps. 1-2-1963 — Process-fee filed. Judgment-debtor No. 1 appeared and prayed for time to file objections — let him file his objections by 9-2-1963. 9-2-1963 — Judgment debtor No. 1 filed objections under Section 47 of the CPC challenging the maintainability of the execution petition on the ground of limitation. Objection numbered as Misc. Case No. 50 of 1963. 16-11-1963 — Misc. Case No. 50 of 1963 dismissed for default. Petition for restoration filed the same day. 23-11-1963 — Misc. Case No. 50/63 restored. The decree-holder let in evidence in support of his contention that Rs. 5/- had been paid by the Judgment-debtors to him towards the decree. The allegation was denied by the judgment-debtors. 1-5-1964 — The learned Munsif dismissed the miscellaneous case on the findings— (1) that the judgment-debtor No. 1 not having filed any objection on 24-1-1963 which was the date fixed for his appearance, the order passed by the Court on that day that the decree holder should take further steps amounted by implication to an adjudication that the execution application is within time and is maintainable and that on the principle of constructive res judicata, the judgment-debtors are not entitled to object to the execution at a later stage of the same execution proceedings: (2) that the payment of Rs. 5/- alleged to have been made on 25-12-1960 is true and it saves limitation. 26-10-1965 — On appeal, the learned Subordinate Judge set aside both the findings. He held that the alleged payment of Rs. 5/- is not true, and that the principle of constructive res judicata is wholly inapplicable to the facts of the present case. He, therefore, held that the execution proceeding is barred by time and is not maintainable.

2. It is against this order that the decree-holder has filed the present appeal. This appeal, in the first instance came up for hearing before the Hon'ble Chief Justice who directed that this be heard by a Full Bench. Obviously, in view of certain conflicting decisions to which reference will presently be made.

3. The questions that arise for consideration in this appeal are the following:—

(1) What is the exact import of the order dated 24-1-1963 passed by the executing Court and whether it amounts to an implied adjudication that the decree is executable and the execution application is not barred by limitation.

(2) Assuming that it is so, whether it is open to the judgment-debtors at a subsequent stage of the execution proceeding to contend that the execution application is barred by limitation. In other words, whether the principle of constructive res judicata can be invoked by the decree-holders to bar adjudication of the objections raised by the Judgment-debtors.

4. Order 21 of the Code relates to the execution of decrees and orders. An application for execution of the decree, unless it is an oral application made in the circumstances mentioned in clause (1) of Rule 11, is required to be in writing and is to contain particulars as mentioned in clause (2) of Rule 11. Rule 22 provides that notice of the execution application should be Issued to the person against whom execution is applied for requiring him to show cause on a date to be fixed, why the decree should not be executed against him. Then follows Rule 23 which may be quoted.

“23. (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit”. Sub-rule (1) contemplates the non-appearance of a judgment-debtor while sub-rule (2) deals with his appearance. Both sub-rules (1) and (2) deal with the same stage of the proceeding. sub-rule (2) does not contemplate appearance of the judgment-debtor at any subsequent stage. In the case before us, admittedly the judgment-debtor did not appear in Court on 24-1-1963 which was the date fixed for their appearance, and consequently did not show any cause as to why the decree should not be executed. Ours is, therefore, a case to which sub-rule (2) of Rule 23 of the CPC has no application. The rule that would be applicable would be Sub-rule (1), and this sub-rule requires that if the judgment-debtor does not appear or does not show cause as to why the decree should not be executed, the Court shall order the decree to be executed. Where the judgment-debtor appears and objects to the execution on some ground, and the Court after consideration of such objections overrules the sames the Court again has to pass an order that the decree be executed.

5. Therefore, an order that decree be executed, whether passed under clause (1) of Rule 23 or clause (2) thereof is a determination of a question within Section 47 of the Code, and amounts to a decree within the meaning of Section 2(2) and an appeal therefore lies from such an order. It is not disputed that where the judgment-debtor on receipt of notice issued under Order 21, Rule 22 of the CPC appears in the Court and files objections, and on a consideration thereof, the Court rejects the objections and directs execution to proceed, the judgment-debtor cannot at a later stage of the execution proceeding put forth the same objections once more and that he shall be debarred from doing so on the principle of res judicata. What however, is contended on behalf of the judgment-debtor respondents is that where the judgment-debtor does not appear in response to the notice and consequently does not file an objection, and as required by Sub-rule (1) of Rule 23, the Court passes an order that the decree be executed, the order so passed by the Court is more or less automatic and there is no “adjudication” of anything, and consequently the principles of constructive res judicata are not attracted to such a case and the judgment-debtor is entitled at a later stage of the proceedings to put forth his objections to the executability of the decree.

6. For the purpose of examining the validity of this contention, we are assuming for the present, that the import of the order dated 24-1-1963 passed in this case is that the Court has ordered that the decree be executed.

7. Section 11 of the Code dealing with res judicata, in so far as is material, may be quoted:

“11. No Court shall try any suit of issue in which the matter directly and substantially in issue has been directly; and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

8. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

9. Explanation IV.—Any mattes which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit.

10. Explanation V. — Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this Section, be deemed to have been refused.

11. Although Section 11 does not, in terms, apply to execution proceedings it is now well settled that general principles of res judicata would be applicable also to execution proceedings. Where, therefore, a matter which directly and substantially arises for decision in an execution proceeding, is heard and decided by a competent Court, such a decision is final between the parties and operates as res judicata in a subsequent execution proceeding or at a subsequent stage of the same execution proceeding.

12. The question, however, as whether the principles of constructive res judicata would be applicable to execution proceedings, that is, where a judgment debtor fails to raise all his objections to the execution application made by the decree holder, which he might and ought to have raised and the application is allowed, whether all such objections would be deemed to have been impliedly decided against him. True it is, that no objection would be held to have been impliedly decided against the judgment debtor unless it is that without such implied decision thereon the execution would not have been ordered. There cannot be any dispute that the plea of limitation is one of such objections.

13. This precise question came up for consideration as long ago as in 1881 before the Judicial Committee in Mungul Pershad Dichit v. Girija Kant Lahiri Choudhry (1880) 8 Ind. App. 123 (PC). There were as many as seven execution applications presented from time to time to execute the decree passed in that case on 8th July, 1851. It is unnecessary to refer to the details of the execution applications. It is sufficient to say that the sixth execution application presented on 5th September, 1874 was according to the law of limitation in force at that time, barred by limitation. The judgment-debtor did not appear in Court in response to notice, and in due course, sale proclamation of properties attached was issued. At that stage the judgment-debtor appeared in Court and filed an application to stop the sale for three months, admitting the debt. Sale was stopped and the execution application was allowed to be dismissed on 25th of January, 1875. The next and the seventh application for execution was presented on 22nd September, 1877, and the judgment-debtor appeared in Court and contended that the sixth execution application presented on 5th September, 1874 was barred by limitation, and consequently the seventh execution application should not be allowed to proceed.

14. The Court of first instance held that although it was open to the executing Court to dismiss the sixth execution application as being barred by time although, the judgment-debtor did not appear and file any such objection, yet he not having done so and having allowed the execution to proceed, his order, though erroneous, was valid because it had not been reversed, and it is, therefore, not open to the judgment-debtor to contend in the proceeding arising under the seventh execution application that the previous execution proceedings were barred by time. Although the High Court reversed the order, their Lordships of the Privy Council set aside the order of the High Court, and concurring with the view expressed by the Subordinate Judge, overruled the objection of the judgment-debtor. This principle was reiterated by the Judicial Committee in Shivraj Gopaljl v. Ayissa Bi (AIR 1949 PC 302). Their Lordships opined:

“Where in an earlier execution proceedings a decree-holder could have raised a plea that the judgment-debtor had an interest in certain property which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed, the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of Section 11 of the CPC, it is contrary to the principle to allow the decree-holder in fresh proceedings to renew the same claim merely because he neglected at a proper stage in previous proceedings to support his claim by the argument of which he subsequently wishes to avail himself.”

15. In AIR 1944 S.C. Puttappaji v. Dodda Mallappa), an execution petition was filed out of time. The judgment-debtors remained ex parte even after notice to them and an order “proclaim and sell” was passed by the Court. At a later stage of the proceedings, the judgment-debtors took the objection of limitation. A learned single Judge of the High Court held following the dictum of Patanjali Sastri, J. in a previous Bench decision of that Court in AIR 1941 Mad. 440 that the order “proclaim and sell” impliedly decided that the execution petition was not barred by limitation and that the order operated as res judicata at a later stage of the proceedings and could not be disputed by the judgment-debtor. The same view was adopted by a Division Bench of that Court in AIR 1954 Mad. 1070 (Shanmugavelu Pillai… v. Karupannaswami Pillai….).

16. In 38 Cal. WN 141 : (AIR 1934 Cal 472) (Ananda Kumar v. Sk. Madan) an application was made by a certain person for execution of a decree and no objection was raised that the decree was not executable at the instance of the applicant and the application was held to be maintainable. It was held by the Calcutta High Court that no further objection on the score of the maintainability of a fresh application for execution on the part of the same applicant could be raised. That High Court, however, in AIR 1962 Cal. 272 (Bishwanath Kundus…Judgment-Debtor, v. Sm. Subala Dassi, Decree-Holder….) held that a dismissal for default of an objection made under Section 47, which involves no decision on the merits, either expressly or impliedly, that is by necessary implication, cannot be held to bar a subsequent objection, either similar or different. No reference in this case was made to the previous Bench decision of that Court in 38 Cal. WN 141 : (AIR 1934 Cal 472). The decision of AIR 1962 Cal. 272, however, can be distinguished on the ground that it did not involve an application of Explanation 4 to Section 11 but it was a case where the judgment-debtor appeared and filed objections but the objections were later on dismissed for default of his appearance.

17. In the Patna High Court, onef of the earliest cases where this point was taken up for consideration is AIR 1938 Pat. 427 (Mahadeo Prasad Bhagat…Defendant v. Bhagwat Narain Singh…Plaintiff .). In execution of a money decree, certain properties were sold in execution. Such a sale being alienation within the meaning of Section 12-A of the Chota Nagpur Encumbered Estates Act required the sanction of the Commissioner. Objections on two occasions were put in by the judgment-debtor under Sec. 47 of the Code to the validity of the execution proceedings. Although objections were raised, they were not decided and the objection petitions were all dismissed. The property having come to the possession of the purchaser, an action was brought claiming a declaration that there having been no sanction of the Commissioner, the sale to the purchaser was void. The High Court in holding that the point was res judicata by reason of Expl. 4 to Section 11 observed:

“The argument that Expl. 4 to S. II does not apply to proceedings under Section 47, as I have already said is without foundation and it seems to me therefore quite clear that there not having been a decision on this point none-the-less the question whether the sale was void or not is now res judicata in favour of the defendant-appellant.”

18. A Bench of five Judges of the Patna High Court in Baijnath Prasad Sah v. Ramphal Sahni, (AIR 1962 Pat 72) (FB) had expressed the same view. Their Lordships held that:—

“The doctrine of res Judicata is very much wider in scope than Section 11. It applies to execution proceedings. If a party takes an objection at a certain stage of a proceeding, and has not taken another objection which he might and ought to have taken at the same stage, it must be deemed that the Court has adjudicated upon the other objection also and has held against him. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when he might and ought to have raised an objection, he does not do so, he cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against him.”

19. This view was approved in a later Full Bench decision of that Court in Sarjug Singh v. Basisth Singh ((1968) ILR 47 Pat 178) : (AIR 1970 Pat 237 (FB)).

20. The same view was expressed by the Gujarat High Court in Ganchl Laxmichand Ambaram v. Tulsidas Madhavdas (AIR 1963 Guj. 1), where Bhagwati, J. (as he then was) observed:—

“If the order under Order XXI, Rule 23, can operate as res judicata in regard to the contentions urged at the hearing of the notice under O. XXI, R/22, that order must equally operate as constructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Or. XXI, R. 22. Equally must the order under Or. XXI, R. 23 operate as constructive res judicata if the person against whom the decree is sought to be executed did not appear in answer to the notice under Or. XXI, R. 22 and the order directing the decree to be executed was, therefore, made by the Court. In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed would be barred by the principle of constructive res judicata and it would not be open to such person to raise those contentions at any subsequent stage of the execution proceedings.”

21. In AIR 1951 Assam 75 (Ajlmuddin v. Budheswar Sarma), a Bench of Assam High Court held that where the judgment-debtor fails to appear in response to a notice under Order 21, Rule 22 and the executing Court orders execution to proceed, the judgment-debtor appearing in response to a notice for settlement of the terms of the sale of the property cannot object to the execution of the decree on the ground that the previous execution application being time barred, the present application was liable to be dimissed.

22. So far as our Court is concerned, a Full Bench of this Court in Jagannath Ramanuj Raj Deb v. Sri. Lakshmi Narayan Tripathy (AIR 1960 Orissa 197 F.B) held;—

“Section 11 of the CPC. Is not exhaustive on the question of res judicata and its principle applies to execution proceedings also.”

“Thus, an objection as to Jurisdiction of executing Court raised and finally decided in a prior execution would be barred by res judicata in subsequent execution irrespective of whether the decision was erroneous in law or not.”

“So also, an objection that the decree is not executable or is barred by limitation, which ought to have been raised but not raised in prior execution, will be barred by the principle of constructive res judicata.”

23. Later decisions reported in AIR 1965 Orissa 2 (Sadhucharan Patri v. Sudarshan Patri), AIR 1969 Orissa 147 (G. Pannalal Sowcar… v. Appalabhukatala Sanyasayya Achary….); and (1968) 34 Cut LT 758) : (AIR 1968 Orissa 183) (Niranjan Das v. Liquidator, Puri Bank, Ltd.) have adopted the same view. Although AIR 1967 Orissa 38 (Ramchandra Nahaka v. Bharat Rana) was a case where a prior application filed under Section 47 of the CPC read with Section 151, was dismissed for default of the petitioner in presence of the opposite party, it was held that subsequent petition almost on identical terms submitted by him would be hit by constructive res judicata. The learned Chief Justice in deciding this case followed the earlier Full Bench decision in AIR 1960 Orissa 197.

24. The High Courts of Allahabad and Bombay however, appear to have taken a slightly different view of the questions at issue. The facts in AIR 1936 All. 21 (Genda Lal…(Judgment-Debtor); v. Hazari Lal…(Decree-Holder).*) which was decided by a Full Bench are these: A money decree was passed on 12th March, 1928. On 29th November, 1932, the decree-holders filed an application in Court certifying the receipt of Rs. 50/- on 11th November, 1930. On the 15th February, 1933, the first application for execution was filed and it was stated in that application that Rs. 50/- had been received on 11th November, 1930. There was a further allegation that the judgment-debtor had given a slip which however was lost. A notice under Order, 21, Rule 22 of the CPC was issued fixing 6th March, 1933. The judgment-debtor did not attend Court on that day, and as prayed for by the decree-holders, a warrant of arrest was issued against the judgment-debtor who was arrested and produced in Court on 23rd March, 1933. On that day he made an objection on the ground that he had not made any payment of Rs. 50/- on 11th November, 1930 and therefore the execution application was barred by limitation.

25. The lower Court dismissed the objection as barred by res judicata. The Full Bench, however, held with reference to the facts of that case that the mere fact that the judgment-debtor did not appear in response to the notice under Order 21, Rule 22 of the CPC did not imply that he admitted that the application was in time, when on the face of it was barred by limitation. The application was barred by time and the Court ought not to have Issued any notice at all. In those circumstances, therefore, the Full Bench held that there was nothing in law to prevent the executing Court entertaining the judgment-debtor's plea of limitation at any time during pendency of the application for execution. Sulaiman, C.J with whom Bennet, J. agreed summarised his conclusions thus:—

“(1) Where there has been an express adjudication by the Court in the presence of parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding, or in a subsequent execution proceeding.

(2) Where an objection is taken but is dismissed or struck off, even though not on the merits and the application for execution becomes fructuous, the judgment-debtor is debarred from raising the question of the invalidity of that application.

(3) Where an objection to execution is taken, but it not dismissed on the merits or is dismissed for default and the application for execution does not become fructuous, the judgment-debtor is not debarred from subsequently raising the question that application was not within limitation.

(4) Where no objection to the execution is taken but application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment-debtor is debarred by the principle of res judicata from raising the question that application was not within limitation.

(5) Where no objection is taken but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later.”

26. Niamatullah, J. in a separate judgment while pointing out that it is the consistent view of the Allahabad High Court that the rule of constructive res judicata is not applicable to execution proceedings, still expressed the view that a judgment-debtor is not precluded by the principle of res judicata from raising the plea of limitation in an execution proceeding unless inter alia there was an adjudication implied in an order which taken with the surrounding circumstances, should be taken to imply a conscious determination of the question of limitation adversely to the judgment-debtor and also in those cases where the judgment-debtor might and ought to have taken the plea of limitation but failed to do so and the final result of the application was to grant the relief of partial satisfaction of the decree to the decree-holder.

27. On a closer scrutiny of this decision, therefore, I find that it does not run counter to the views expressed by other High Courts already referred to because it has recognised that if there was an adjudication implied in an order which considered with the surrounding circumstances should be taken to imply a conscious determination of the question of executability of the decree, the judgment-debtor would be precluded on the principle of res judicata from raising that plea at a subsequent stage of proceeding. It is only because in that case the execution application was on the face of it barred by limitation and as such the executing Court ought not to have issued any notice at all, that the High Court held that in allowing the execution case to proceed in the absence of any objection by the judgment-debtor, there was no conscious adjudication on the question of limitation and therefore that order would not operate as res judicata.

28. In AIR 1943 Bombay 252 (M.H Kakkalmali v. G.H Kulkarni), the facts were these: There was a mortgage decree for Rs. 1750/- and it was put in execution for sale of the mortgaged property. In response to notice under Order 21, Rule 22 of the CPC the judgment-debtor did not appear in Court and the executing Court transferred the proceedings to the Collector. When the Collector issued notice to the judgment-debtor, he appeared in Court and contended that he had paid Rs. 601-13-3 in part satisfaction of the decree-holder's claim and that to that extent the execution should not proceed. The Collector directed the judgment-debtor to move the executing Court and when that was done, the decree-holder contended that the plea was not open to the judgment-debtor as he might and ought to have raised that contention before the order transferring the application to the Collector was made.

29. The executing Court upheld the objection of the decree-holder while the District Judge on appeal thought that the principle of res judicata could not be applied to the facts of that case because an order directing execution to proceed would only imply that the Court considered the question as to whether the decree-holder had a right to execute the decree, whether the judgment-debtor was liable to satisfy the decree, whether the decree was executable and whether the claim was not barred by limitation and that the question of part satisfaction was not decided nor required to be decided at that stage.

30. The High Court while recognising that the general principles of res judicata apply to execution proceedings held that the rule of constructive res judicata must be applied with great caution against a party to the execution proceedings who had no direct notice on the point and therefore had no opportunity to raise it. This case again must be deemed to be confined to the facts of that case, because, there the question in controversy did not relate to the maintainability of the execution application as such but to the question whether the execution should proceed in respect of the entire amount covered by the application or in respect of only a part of it.

31. I shall now refer to the decisions of the Supreme Court on the subject. The earliest of these cases brought to our notice is AIR 1953 SC 65 (Mohanlal Goenka v. Benoy Krishna Mukherjee). A decree was passed on the original side of the Calcutta High Court and was sent to the Court of the Subordinate Judge, Assansol for execution. In the latter Court execution was applied for, notice under Order 21, R. 22 of the CPC was issued and for the default of the decree-holder to prove service it was dismissed. The Assansol Court sent to the High Court what purported to be a certificate under Section 41 of the CPC stating that the execution case was dismissed for default. Neither the copy of the decree nor any covering letter as required by the Rules of the High Court was sent along with the certificate. Thereafter the decree-holder filed a second application for execution of the decree in the Assansol Court praying for sale of the Sripur Colliery belonging to the judgment-debtor.

32. Notice under O. 21, R. 22 of the CPC was duly served and the executing Court ordered issue of sale proclamation. It is unnecessary to refer to the details of the proceedings. It is enough to state that during the pendency of the execution proceedings several objections were filed on behalf of the judgment-debtor to the effect that after the Assansol Court had sent to the High Court a certificate under Section 41 of the CPC stating that the execution case was dismissed for default, the decree was never again transferred to the Assansol Court for execution and consequently the latter Court had no jurisdiction to entertain the second execution application filed by the decree-holder. These objections were, however, not pressed on the earlier occasions with the result that the execution proceeded and the property was also sold. After the sale, the judgment-debtor filed another application repeating the same objections. The Subordinate Judge dismissed the objections taking the view that having made the allegations in the previous misc case and then abandoning them, the judgment-debtor is precluded from raising the plea of jurisdiction to execute the decree on the principle of constructive res judicata.

33. On appeal, the High Court in AIR 1950 Cal 287 (Benoy Krishna Mukerjee v. Mohanlal Goenka) held the view that the entertainment by the Assansol Court of the second execution case and passing of an order for sale therein are without jurisdiction after the certificate of non-satisfaction had been sent to the transmitting Court, and that such an order is null and void and can neither operate as an estoppel nor as a bar in res judicata to an application under Section 47 of the CPC to set aside the sale by the judgment-debtor who discovered the defect subsequent to the order for sale. The matter was taken up in appeal to the Supreme Court which reversed the decision of the High Court observing:

“That the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt.”

“Thus where neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him does the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree, the failure to raise such an objection which goes to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction-purchaser who has entered into possession”.

34. It was further observed in the judgment that even an erroneous decision on a question of law operates as res judicata between the parties to it, and that a decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties. This decision of the Supreme Court which is in accord with the earlier decisions of the Privy Council and with the views of the several High Courts referred to above, was followed in the subsequent decisions rendered by those High Courts. No other decision of the Supreme Court has been brought to our notice where their Lordships have dissented from their earlier decision in AIR 1953 SC 65. But it is contended by Mr. B. Mohapatra on behalf of the respondents that in view of the decision of the Supreme Court in (1969) 1 SCC 718 : AIR 1969 SC 971 (Shivashankar Prasad Shah v. Baikunth Nath Singh), the law laid down in the earlier decision in AIR 1953 SC 65 can no longer be deemed to be correct.

35. To understand the context in which their Lordships rendered the decision in (1969) 1 SCC 718 : AIR 1969 SC 971, it is necessary to state the facts in some detail. The appellants in that case obtained a preliminary mortgage decree on June 26, 1947. The property mortgaged was an estate and included both bakasht lands as well as other lands. The Bihar Land Reforms Act came into force sometime after the preliminary decree. The decree-holders filed petition for passing a final decree on September 19, 1955. The estate mortgaged vested in the State of Bihar on January 1, 1956. On October, 1, 1956, a final decree was passed in the mortgage suit. On June 18, 1968, the decree-holders filed an execution petition to execute the mortgage decree against the Bakasht lands. The judgment-debtors resisted the execution by filing an application under Section 47 of the CPC on the ground that the decree cannot be executed in view of the provisions of the Bihar Land Reforms Act. That application was dismissed for default of the judgment-debtors on September 12, 1959.

36. A second application raising the same ground was filed by the judgment-debtors on September 24, 1959 and was again dismissed for default. A third application raising the same ground of objection was filed by the judgment-debtors on September 12, 1960. After examining the contentions of the parties that application was dismissed on the ground that the objection raised by the judgment-debtors was barred by the principles of res judicata and also on the ground that it had no merits. This decision was affirmed by the appellate Court but reversed by the High Court. On appeal to the Supreme Court, their Lordships held:

“Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment-debtor of an application filed by him under Section 47 of the CPC resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed by him.”

37. Although this decision prima facie appears to be not in consonance with what their Lordships had earlier decided in AIR 1953 SC 65, that decision does not appear to have been brought to the notice of their Lordships because no reference has been made thereto in the decision.

38. About a year after this decision was rendered, a similar question came up again for decision before the Supreme Court in Prem Lata Agarwal v. Lakshman Prasad Gupta ((1970) 3 SCC 440 : AIR 1970 SC 1525). The respondent Lakshman Prasad Gupta obtained a decree against the predecessors of the appellant on 20th July, 1938 in the Court of the Subordinate Judge, Arrah and this decree was transferred for execution to the Court of the Civil Judge at Allahabad. In that latter Court, the decree-holder applied on 2nd, June, 1941 for execution and for attachment and sale of certain sugar mill. The execution proceedings were stayed under orders of the Allahabad High Court and the stay order was vacated and the execution proceedings were revived on 13th May, 1950. The sugar mill was attached and sold. But the sale was later on set aside on 31st May, 1955, pursuant to the objections by the judgment-debtors that the mill could not be sold because of the provisions of the U.P Encumbered Estates Act, 1934.

39. Thereafter, the decree-holders made an application and obtained an order from the Arrah Court for the transfer of the decree to the Madras High Court. On 13th August, 1956, the decree-holders filed in the Madras High Court an application for attaching the properties of the judgment-debtors situate in Madras. The judgment-debtors pleaded that as the decree is dated 20-7-1938, the execution filed on 13th August, 1956 was barred by limitation. The decree-holders contended, on the other hand, that the execution of the decree which commenced on 2nd June, 11941 before the Civil Judge Allahabad was stayed till the end of 1949 and was revived on 13th May, 1950 and finally disposed of on 31st May, 1955 and, therefore, the execution petition filed on 13th August, 1956 was within time. On merits, the Madras High Court held that the execution application was not barred by limitation. When the matter came up in appeal before the Supreme Court, it was contended Inter alia by the respondent-decree-holders that the judgment-debtors were also precluded from agitating the question of limitation by the principle of res judicata. This contention found favour with their Lordships of the Supreme Court, and they stated in paragraph 18 of the judgment thus:

“In the present case, there was stay of execution proceedings. On 13th May, 1950, the execution proceedings were revived. The judgment-debtors did not challenge the order dated 13, May, 1950. The iudgment-debtors impeached the sale only on a ground covered by the U.P Encumbered Estates Act, 1934. The judgment-debtors further in impeaching the sale of Jhusi Sugar mill did not advance before the Civil Judge at Allahabad any contention that any of the orders of the Civil Judge at Allahabad reviving the execution proceedings, attaching the Jhusi Sugar Mill and directing the sale of the Sugar Mill was barred by limitation. The principle of res judicata applies to execution proceedings. The judgment-debtors in the present case did not raise any objection as to limitation in regard to execution of the decree before the Civil Judge at Allahabad. On the contrary, the judgment-debtors asked for setting aside the sale on the basis of revival of execution proceedings. The revival of execution was not challenged and the judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order dated 13th May, 11950 reviving the execution proceedings.”

40. It would thus be noticed that the plea of limitation was not set up by the judgment-debtors in the Allahabad Court and consequently there was no occasion for the Court to hear and determine that point. None-the-less the Supreme Court held that on the principle of res judicata, the judgment-debtors were precluded from setting up the plea of limitation in the subsequent execution proceedings in the Madras High Court. This is obviously because their Lordships were of the view that the plea of limitation might and ought to have been made a ground of defence in the previous execution proceedings and that not having been done, it must be deemed that the point is decided against the judgment-debtors. No reference is made in this judgment to the earlier decision of the Supreme Court in (1969) 1 SCC 718 : AIR 1969 SC 971 laying down the principle that before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court, nor was any reference made therein to the still earlier decision of the Supreme Court in AIR 1953 SC 65. But the law laid down by their Lordships in (1969) 1 SCC 718 : AIR 1969 SC 971 is in accord with the one stated in AIR 1953 SC 65.

41. Explanation IV to Section 12 of the Code says that any matter which might and ought to have been made a ground of defence or attack in a former suit of the nature (referred to in the body of the section) shall be deemed to have been a matter directly and substantially in issue in such suit. This Explanation, therefore, refers to pleas which ought to have been taken in the former suit, but not actually taken. In the nature of things, therefore, such pleas, which are not actually taken but which ought to have been taken, can never be heard and much less decided. If to attract the operation of the principle of res judicata it is always insisted upon that a plea must have been actually heard and determined by the Court, then Explanation IV, in my opinion, would lose all its meaning, because there may not be any occasion to press Explanation IV into service. It, therefore, appears to me that the true import of Explanation IV is that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit, and therefore, decided against the defendant.

42. (1970) 3 SCC 440 : AIR 1970 SC 1525 is a case which directly attracted the operation of Explanation IV because the plea of limitation which might and ought to have been raised in the execution proceedings in the Allahabad Court had not been raised there, and consequently must be deemed to have been decided against the judgment-debtors with the result that the judgment-debtors were barred from raising the same plea over again in the Madras High Court. The case reported in (1969) 1 SCC 718 : AIR 1969 SC 971, on the other hand, did not attract the operation of Explanation IV because that was a case where the judgment-debtors appeared in Court and raised a plea in bar of limitation which however was dismissed due to the default of the judgment-debtors.

43. That case ((1969) 1 SCC 718 : AIR 1969 SC 971) can, therefore, be distinguished on facts and cannot be pressed as an authority for the proposition that the principle of constructive res judicata would not be applicable even to a case where the judgment-debtor on receipt of notice fails to appear and put forth pleas in bar of execution in consequence of which the execution case is allowed to proceed. In the circumstances, therefore, I am of the view that the decision reported in (1969) 1 SCC 718 : AIR 1969 SC 971 is of no assistance to the respondents in this case.

44. Our attention was next drawn to two other decisions of the Supreme Court in Pandurang Mahadeo Kavade v. Annaji Balwant Bokil, ((1971) 3 SCC 530 : AIR 1971 SC 2228) and Mathura Prasad v. Dossibai, ((1970) 1 SCC 613 : AIR 1971 SC 2355). In the first of these cases, the Court held that where the Court trying the previous suit has no pecuniary jurisdiction to try the subsequent suit, the decision in the prior suit does not operate as res judicata. This is clear from Section 11 itself and as such a question does not arise for consideration in the present case. In the second case it was laid down that a question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court and that if by an erroneous interpretation of the statute the Court either holds that it has no jurisdiction when in fact it has, or assumes jurisdiction which it does not possess under the statute, such a decision cannot ope-rate as res judicata between the same parties.

45. It is said that this decision considerably shakes the authority of the law laid down in AIR 1953 SC 65, because in that case, the Court had held that if the judgment-debtor at an earlier stage does not put forth the plea that the executing Court had no jurisdiction, he cannot raise such a plea at a later stage of the execution proceedings. Apart from the fact that the decision in AIR 1953 SC 65 does not appear to have been brought to the notice of their Lordships deciding (1970) 1 SCC 613 : AIR 1971 SC 2355, we are not, in the present case, concerned with the question of jurisdiction. That apart, the principle underlying the decision in AIR 1953 SC 65, notwithstanding the particular plea taken in that case, appears to be that if a plea which might and ought to have been taken at an earlier stage of the execution proceedings is not taken by the judgment-debtor, it must be deemed that it was decided against him. It is on this principle that the decision proceeded and the decree-holders in this case rightly want to draw support from that principle.

46. As the decision of this Court in 34 Cut LT 758 : (AIR 1968 Orissa 183) is in accord with the view we have taken of the application of the principle of constructive res judicata to execution proceedings, the observation in (1970) 1 Cut WR 255, (Sama Kishore Das v. Raj Kishore Das) (on which reliance is placed by the respondents) that the decision in 34 Cut LT 758 : (AIR 1968 Orissa 183) does not state the law properly and must be taken to have been impliedly overruled by the decision of the Supreme Court in (1969) 1 SCC 718 : AIR 1969 SC 971, does not appear to us to be correct.

47. Our conclusions, therefore, on the point of law involved in the inference are these:—

(1) Sub-rules (1) and (2) of R. 23 of O. 21 of the CPC deal with the same stage of the execution proceedings, namely, the stage where notice under Order 21, Rule 22 is served on the judgment-debtor.

(2) If after receipt of the notice the judgment-debtor does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order that the decree be executed.

(3) Such an order passed by the Court is not automatic, but involves an implied adjudication that the decree-holder has a right to execute the decree, that the judgment-debtor is liable to satisfy the decree and that the execution application is not barred by limitation.

(4) The principle of constructive res judicata is applicable to execution proceedings.

(5) Where in response to the notice under Order 21, Rule 22 of the CPC, the judgment-debtor either does not appear in Court or having appeared does not object to the execution on the ground that the execution application is barred by limitation, and the Court thereupon orders that the execution do proceed then by application of Explanation IV to Section 11 of the CPC, it would be deemed that the plea of limitation had been raised and rejected and consequently the judgment-debtor would not be permitted at a later stage of the same execution proceedings to raise the plea of limitation.

48. Turning now to the facts of the present case, the question is what exactly is the import of the order dated 24-1-1963 passed by the executing Court. Notice under Order 21, Rule 22 was served on the judgment-debtors but they did not appear in Court on 24-1-1963 which was the date fixed for their appearance. The Court did not pass any order as was required by Sub-rule (1) of Rule 23 of Order 21 of the CPC that the decree be executed. Instead, he directed the decree-holder to take further steps. As already indicated, the third execution case No. 195 of 1962 was filed more than three years after the second execution case No. 72 of 1958 was dismissed. Prima facie it was barred by limitation. It does not appear from the records that notice of the third execution case was served on the judgment-debtor with the result that he had no opportunity to contest about the maintainability of the execution case, and that execution case was dismissed on 27-9-1962.

49. The present execution case (Ex. C.339/62) was filed on 18-12-1962 and it is mentioned therein that a sum of Rs. 5/- had been paid by the judgment-debtors to the decree-holder towards the decretal dues on 25-12-1960. If this payment is true and binds the judgment-debtors, then undoubtedly the third execution application and also the present execution application would be in time. The onus to prove such payment was admittedly on the decree-holder. Section 3 of the Limitation Act provides that every application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. This provision is, therefore, imperative and casts a duty upon the Court to dismiss an application which has not been made within the period prescribed in the schedule and the duty of the Court is not dependent on an objection being raised by the opposite party.

50. There is no reason to believe that the Court while passing the order on 24-1-1963 was not aware of the duty cast upon it by Section 3 of the Limitation Act and also by the provisions contained in Sub-rule (1) of Rule 23 on Order 21 of the CPC. That obviously appears to be the reason why in spit of the absence of the judgment-debtors, the Court instead of passing an order that the decree be executed only directed the decree-holder to take further steps.

51. The Court obviously meant thereby that the decree-holder should take steps to prove the payment of Rs. 5/- alleged by him in that application. That obviously is the reason why when on the next date, namely, 1-2-1963, the judgment-debtor No. 1 appeared in Court and prayed for time to file objections, he allowed him to do so by 9-2-1963. I am, therefore, satisfied, on a perusal of the order sheet in this case that the Court did not adjudicate on 24-1-1963 either directly or by necessary implication that the execution application is within time and that it is executable. He was, therefore, perfectly justified in entertaining the objection filed by the judgment-debtors.

(After discussing the evidence in paragraph 21, the judgment proceeded:)

52. Having gone through the evidence, I am satisfied that the learned Subordinate Judge had come to the correct conclusion in disbelieving the payment and holding that the execution application was barred by limitation.

53. In the result, this appeal fails and is dismissed, but in the circumstances, without costs.

54. Ray, J.:— I agree.

55. B.C Das, J.:— I agree that—

firstly, that an order under O. 21, R. 22 of the CPC would under appropriate circumstances operate as res judicata in respect of the question of limitation even, though the judgment-debtor might not have appeared and even though such a question has not been expressly decided, and

secondly, that on the facts of the Instant case the order dated 24-1-1963 is not an order directing execution to proceed within the meaning of O. 21, R. 23(1) of the CPC.

56. I would, however, like to add that the reasons that have weighed with me on the second aspect of the problems are somewhat different.

57. There is little doubt that sub-rules (1) and (2) of Rule 23 relate to the same stage in the execution proceeding. This is of importance because this stage has to be kept distinct from the stage commencing with the steps in pursuance of Order 21, Rule 24. It may be in form that this latter proceeding may be a continuation of the previous proceeding. But it cannot be doubted that in substance this latter proceeding in Rule 24 was an independent and subsequent proceeding in relation to the proceedings covered by Order 21, Rule 23 of the CPC.

58. It is not very material in construing the relevant order either that Section 3 of the Limitation Act casts a duty on the Court to take notice of the question of limitation suo motu, or that the judgment-debtor has in fact subsequently filed his objections. So far as the former is concerned the bar of res judicata would operate notwithstanding the provisions of Section 3. As regards the latter, the only pertinent question is at what stage the objections have been taken.

59. In other words, the question is if the relevant order had the effect of concluding the stage covered by Order 21, Rule 23. The order is as below.

“24.1.1963— Service return received. Service proved and accepted as sufficient. Ordered to be put up on 1-2-1963 when decree-holder to take further steps”

60. It is self evident that in the context of the failure of the judgment-debtor to appear the expression “decree-holder to take further steps” standing by itself and without anything more would only refer to the subsequent steps in furtherance of the execution of the decree, namely, steps for “the issue of process for execution of the decree” as contemplated in Order 21, Rule 24, even though such an order is not couched exactly in terms of Order 21, Rule 23(1).

61. But since the exact language in Rule 23(1) namely that “the Court shall order the decree to be executed” has not been followed there may be circumstances which give rise to a certain ambiguity regarding what had really been ordered by the Court in observing that the decree-holder is to take further steps. From the order dated 24-1-1963 as extracted above the context in which the decree-holder appears to have been called upon to take further steps is that after deciding that the service of notice on the judgment-debtor had been sufficient, the petition was ordered to be put up on 1-2-63 when the decree-holder was to take further steps.

62. There appears to be no escape from the position that no final orders were passed on the petition on the date on which it was posted namely on 24-1-63 but that it was expressly ordered to be put up on 1-2-63 when the decree-holder was to take further steps. Such an order is manifestly amenable to the only construction that all that the Court said on 24-1-63 is that it was not before 1-2-63 that steps were to be taken by the decree-holder in respect of the execution petition and what further steps were to be taken was to be decided on that date. In other words, as to whether the execution was to proceed or not or whether process for execution was to be issued or not was left entirely open till 1-2-63.

63. In any other view of the matter, it would not be possible to give any rational meaning to the words “ordered to be put up on 1-2-63 when the decree-holder to take further steps”, taken as a whole. The result must be that the stage covered by Order 21, Rule 23 was not over and when the judgment-debtor appeared on 1-2-63 and asked for time for filing objections, he must be held to have done so within the meaning of sub-rule (2) of Rule 23 of Order 21.

64. There can be no justification to entertain a view that the Court while proceeding under Rule 23 had no powers to allow time thereafter to the judgment-debtor to file objections.

65. Nor is it that the order to be passed on failure of judgment-debtor to appear has got to be something automatic and not after an application of the judicial, mind.

66. Thus, when ultimately on 9-2-63 the objections were filed, it cannot but be said that these objections came up for consideration as contemplated under O. 21, R. 23(2) of the CPC.

67. For the aforesaid reasons, I would dismiss this appeal, but in the circumstances, without costs.

68. Appeal dismissed.