R.K Choudhary, J.:— This appeal by the judgment-debtor is directed against the order of the first Subordinate Judge of Patna, dated 14-2-1958, rejecting the objections raised by him to the execution of a decree passed by the Civil Judge of Betul in Madhya Pradesh. The admitted facts are these. The respondent, a joint Hindu family firm, through the karta and managing proprietors Sri Umacharan, who was of unsound mind and was represented in the suit by his wife as his next friend, obtained, on 18-3-3950, an ex parte money decree for a large sum against the appellant in civil suit No. 15-B of 1949 from the court of the Civil Judge, First Class of Betul.

2. After compliance with the necessary preliminaries the decree was sought to be executed simultaneously in various courts in Bihar, one of them being the court of the Subordinate Judge, first court at Patna. We are in this case concerned only with the execution case in this court because all execution cases in other courts were later on withdrawn. The execution case in question is execution case No. 45 of 1956. On 14-7-1956, the judgment-debtor-appellant raised objections to the execution of the decree under Section 47 of the CPC, which gave rise to Miscellaneous Judicial Case No. 117 of 1956. Thereafter, on 28-9-1956, on an application by the judgment-debtor a sum of Rs. 82,538/- out of Rs. 92,538/- which had been attached in execution of the decree was released from attachment by the executing court. On 6-11-1956, a miscellaneous appeal, being Miscellaneous Appeal No. 387 of 1956, was filed in this Court by the decree-holder against the order releasing the above sum of money. During the pendency of this appeal in this Court, the Miscellaneous Judicial Case No. 117 of 1956 was dismissed for default on 10-11-1956.

3. On 16-11-1956, a restoration application was filed by the judgment-debtor giving rise to Miscellaneous Case No. 139 of 1956. While this application was pending, the above Miscellaneous Appeal No. 387 of 1956 was compromised on 4-1-1957. The terms of the compromise were: (a) that a sum of Rs. 92,538/- be transferred to the court of the Subordinate Judge 1st Court, Patna, in the Execution Case No. 45 of 1956 to the credit of decree-holder; (b) that the payment of the aforesaid amount to the decree-holder may be withheld till the objections of judgment-debtor were disposed of, and, in the event of the court rejecting these objections, the amount shall be paid to the decree-holder, and if the objections were allowed adjudging the decree-holder not entitled to the amount, the same may be paid to the judgment-debtor; and (c) that the interest as provided in the decree shall continue to run till the date of the actual payment to the decree-holder by the court.

4. At the time the compromise was sought to be recorded the parties wanted to put in one more term, namely, that on receipt of the aforesaid amount by the court of the Subordinate Judge, first court, Patna. & after the same has been deposited to the credit of the decree-holder, in execution case No. 45 of 1956 pending before the Subordinate judge, first court, Patna the execution cases pending at other places, that is to say, other than the aforesaid execution case No. 45 of 1956, shall stand withdrawn. This Court passed an order disposing of the appeal in terms of the compromise and with respect to the last term, as suggested above, the parties were directed to file a supplementary affidavit containing that term by a certain date and the direction was that if the supplementary affidavit is not filed by that date, then the appeal will stand disposed of on compromise on the terms already incorporated in the compromise petition, but if the supplementary affidavit is filed by that date, then the above mentioned term will be deemed to have been added to the compromise petition.

5. The parties, accordingly, filed a supplementary affidavit incorporating the above term by the date fixed as aforesaid. On 28-8-1957, the restoration in Miscellaneous Case No. 139 of 1956 was dismissed and against the order of dismissal the judgment-debtor appellant filed a civil revision application, being C.R No. 763 of 1957, in this Court. After hearing the parties, that civil revision application was dismissed by this Court on 11-11-1957.

6. Thereafter, the judgment-debtor again filed another objection to the execution of the decree under Section 47 of the CPC, raising the very same objections which he had raised in his previous objection petition in Miscellaneous Judicial Case No. 117 of 1956. A Miscellaneous case, being Miscellaneous Case No. 91 of 1957, was started on this objection petition, but the same was dismissed on 14-2-1958. The present appeal has been filed against the order of dismissal of this second objection petition.

7. In both the objection petitions various points were raised but the only point that has been pressed in this appeal before us was that no decree could have been passed by the Civil judge of Betel in the suit as the plaintiff being of unsound mind could not represent the joint Hindu family firm as karta and sue in that capacity. The other points have not been pressed before us. In reply to the contention raised on the above point, it has been submitted by Counsel for the decree-holder respondent that the above plea was barred by res judicata.

8. It appears that the appellant appeared in the suit, but after taking several adjournments, did not put forward any contest as a result of which an ex parte decree was passed in that suit. It has, however, been submitted on behalf of the appellant that he had no notice of the suit and that he never appeared in that suit. Counsel for the decree-holder has drawn our attention in this connection to the order-sheet of the above civil suit printed in the paper book of Miscellaneous Appeal No. 387 of 1956 which shows that the appellant appeared through Shri M.T Dharmadhikari, pleader, who, after several adjournments ultimately stated that he did not receive any instructions from the defendant and then the suit was disposed of ex parte.

9. The record of the present case itself shows that the appellant had actually appeared in the civil suit. Paragraph 2 of the judgment, exhibit C, of the civil suit recites that the defendant did no file his written statement and ultimately he remained absent. This shows that he did appear at the previous stage but ultimately absented and allowed an ex parte decree to be passed. It appears that an application to set aside the ex parte decree was made on behalf of the judgment-debtor-appellant.

10. That application, exhibit D, shows that the litigation was left on behalf of the defendant to be managed by his attorney Shri R.S Patel, who on account of being entangled in some cases could not give proper instructions in time to the Counsel of the defendant. Shri M.T Dharmadhikari. The attorney. Shri R.S Patel, also filed an affidavit, exhibit E, in support of this statement. Thus, the contention raised on behalf of the appellant that he never appeared in the suit and had no notice of the same cannot be accepted as correct.

11. Counsel for the decree-holder-respondent has submitted that the appellant not having raised the above plea in the suit in which the decree was passed, is estopped by the doctrine of res judicata to raise the same in execution proceedings. He has also contended that the plea of the appellant raised in his second objection petition to the above effect is barred by the principle of res judicata also on the ground that his previous objection with regard in the same point had been dismissed by the executing court in the execution case in question.

12. It is submitted that on both these grounds the plea of the appellant should be held to he barred by res judicata and the appeal should accordingly be dismissed. Counsel for the appellant, however has contended that neither in the suit nor in his previous objection petition the question raised was ever decided and, therefore, the principle of res judicata has no application. In my opinion, the contention raised on behalf of the appellant has no substance and that made on behalf of the decree-holder-respondent is well founded.

13. The question whether the plaintiff-firm could sue through its Karta who was then of unsound mind and obtain a decree in that suit is a question which could and should have been raised in the suit itself. That not having been raised in sue suit, it cannot he raised in execution of the decree passed in that suit as being barred by the doctrine of res judicata. In this connection, in my opinion, there is no difference whether the decree that has been passed in the suit is an ex parte decree or a contested decree. The application of the doctrine of res judicata has not to depend on the decree being ex parte or contested.

14. A party is as much bound by an ex parte decree, as by a contested one. It is, however, contended on behalf of the appellant that as the firm was represented by an unsound Karta, there was in the eve of law no plaintiff in the suit and the decree passed in that suit was void and an executing court can refuse to execute the decree if it is void.

15. I am unable to accept this contention. There was no doubt a plaintiff in the suit and the karta who was of unsound mind was represented by his wife as his next friend as required by law. Therefore, the decree passed in that suit was not void, and, that being so, the executing court could not entertain the objection in this regard. Assuming, however, in favour of the appellant that the decree was void and the executing court could decide this question, the plea of the appellant is barred by the principle of res judicata inasmuch as his objection raised in the previous case in the very same execution case on this point had been dismissed by the executing court.

16. True it is that objection was dismissed for default of the judgment-debtor but that, in my opinion, does not make any diffcrence in application of the principle of res judicata.

17. The Supreme Court in Sailendra Narayan Bhanja Deo v. The State of Orissa (S), AIR 1956 SC 346 (A) has laid down that a judgment by consent or I default is as effective an estoppel between the parties as a judgment whereby a court exercises its mind on a contested case.

18. Therefore, in either view of the matter, the objections raised by the appellant is barred by res judicata.

19. It is well settled by now that though the doctrine of res judicata as provided in Section 11 of the CPC in terms does not apply to an execution case, the principle of the same is equally applicable even to an execution proceeding. A Bench of this Court in Shyamsunder v. Ramdas*, AIR 1946 Pat 392 (B) has held that although section 11 does not, in terms, extend to execution proceedings and other proceedings of like nature, the general principles of the rule of res judicata including the rules of constructive res judicata do apply to orders and decisions passed in execution cases.

20. In Mahadeo Prasad Bhagat…Defendant v. Bhagwat Narain Singh…Plaintiff ., AIR 1938 Pat 427 (C) a money decree was obtained on the footing of a loan which was the subject matter of a mortgage and the property was sold in execution. Certain objections were put in by the judgment-debtor under Section 47 of the CPC, as to the validity of the execution proceedings. On two occasions the question whether the sale was a valid sale, that is to say, whether the executing court had jurisdiction to sell the property in execution of a money decree, having regard to the fact that no sanction of the Commissioner had been obtained under Section 12-A of the Chota Nagpur Encumbered Estates Act was mooted although it was not decided.

21. The objection petitions were all dismissed and the property having come into 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. It was held that Explanation 4 to S. 11 applied to proceedings under Section 47 of the CPC and that as the point was raised although not decided in the petition under S. 47, the point was res judicata by reason of Explanation 4 to S. 11.

22. This case was approved by the Supreme Court in Mohanlal v. Benoy Krishna, AIR 1953 SC 65 (D) in which it was held that the principle of constructive res judicata is applicable to execution proceedings and that where neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the application 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 had entered into possession.

23. It was further held that even an erroneous decision on a question of law operate as res judicata between the parties to it, and that the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. It was further held that a decision in the previous execution case between the parties even though erroneous is binding on the parties.

24. The present case is exactly covered by a Bench decision of the Calcutta High Court in Fatah Kumar Singh v. Kishen Chand Kachar, AIR 1935 Cal 816 (E). It was held in that case that where the execution of a decree is taken out against certain persons alleged to be the partners of a firm and they raise an objection but do not proceed with it, letting it to be dismissed for default, nor do they prefer an appeal against the order of dismissal, they cannot be allowed to re-agitate the matter all over again in a subsequent execution taken out against them.

25. In Harnath Rai v. Hirdai Narain Kumar, AIR 1953 Pat 242 (F) it has been held that the rule of res judicata applies to execution proceedings and, if a point, which ought to have been raised, is not raised at the appropriate stage, then it would be deemed to have been decided against the person who was entitled to raise it in the course of the execution proceedings.

26. To the same effect is the decision in another Division Bench case of this Court in Dula Bibi v. Parmananda Das, AIR 1940 Pat 251 (G) wherein it was held that the doctrine of constructive res judicata is applicable to execution proceedings to this extent, that where a judgment-debtor fails to raise all his objections to the application in execution made by the decree-holder which he might and ought to have raised and the application is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objections in a later execution of the same decree.

27. On behalf of the appellant, however, reliance has been placed on the cases of Bhagwati Prasad v. Radba Kishun, AIR 1950 Pat 354 (H) and Jagadeo Nawasji v. Co-operative Society Mahalungi No. 2, AIR 1951 Nag 210 (I). In the Patna case what happened was this: The appellant obtained a decree for ejectment against the defendants who were tenants of the premises in question. In execution of the decree, the tenants defendants took the plea that under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, they could not be evicted by these proceedings.

28. On this objection, a miscellaneous case was started. The hearing of that miscellaneous case had been stayed by an order of this Court and on the ground of such stay that case was postponed from date to date. On 5-2-1949, the decree-holder produced before the executing court a certified copy of the judgment of this Court passed in the second appeal arising out of the title suit.

29. The executing court thereupon called out the case on the same date and, as the tenants were not present, dismissed the miscellaneous case for default. When the tenants-respondents came to know of this dismissal, they filed another application on 9-2-1949, objecting to the execution on the ground raised in their previous application.

30. In those circumstances of that case their lordships treated the second application as being one in continuation of the previous application and held that the hearing of the second application on merits was not barred by res judicata. That case has, therefore, no application to the facts of the present case. In the Nagpur case, the judgment-debtor raised an objection to the execution of the decree, but the same was dismissed for non-filing of process fee.

31. The judgment-debtor thereafter made a fresh application objecting to the execution and it was held that the order under execution was a nullity. In those circumstances, it was held that the objection was not barred by the principle of res judicata. That case also, therefore, has no application to the facts of the present case.

32. On consideration of the authorities referred to above, the objection raised to the execution of the decree in the present case was barred by res judicata both on the ground that the same was not taken in the suit itself and on the ground that a previous objection to the same effect had been dismissed by the executing court. The judgment of the court below overruling the objections of the? appellant, therefore, is perfectly correct and justified and must be maintained.

33. In the result, the appeal fails and is dismissed with costs.

34. V. Ramaswami, C.J:— I agree.

D.R.R

35. Appeal dismissed.