Kanhaiya Singh, J.:— These five consolidated miscellaneous appeals arise out of the judgment and order of the Sub-ordinate Judge, Hazaribagh, dated 3rd October, 1958, by which he dismissed the applications made by the appellants in five title suits under Order 23, rule 3 of the CPC, to record a compromise alleged to have been reached lawfully between the parties.

2. This is a second attempt by the appellants to obtain from the Court an order recording the alleged compromise. These cases have a checkered career and afford a flagrant example how the otherwise salutary provisions of law, designed to promote justice, may be misused by the litigants, if they so will, to obstruct the course of justice and to prevent the speedy termination of the litigations. It is most unfortunate that the connected title suits instituted as far back as 1948 have not yet been disposed of.

3. It will be necessary to state here briefly the background of these applications under Order 23, rule 3, to record the compromise. A batch of 246 title suits were instituted by different plaintiffs against the State of Bihar and others in 1948. In spite of the best efforts of the Court these cases could not be heard for nearly ten years. After several adjournments, for one reason or other, they were set down for hearing on 22-7-57. Two days before that date, i.e on 20-7-57, the plaintiffs filed an application for adjournment on the ground of illness of the witnesses.

4. But, as it was expected, it was rejected by the Court. On 22-7-57 they filed another application for adjournment for two months on the ground that an amicable settlement had been reached. It was alleged that Raja Bahadur Kamakhya Narayan Singh of Ramgarh and his representatives negotiated for a compromise with the State of Bihar, that a compromise had been arrived at in respect of almost all the suits, that the terms and conditions were confirmed by the Raja Bahadur and that a formal order from the State to file a joint petition of compromise would be soon received.

5. A copy of the terms of the agreement was also attached with the application. The lawyer representing the State was, however, ignorant of any such compromise and submitted before the Court that he had no such instruction from the Government. Thereupon, the Court adjourned the hearing of the suits till 29-7-1957. On that date an application was filed on behalf of the State categorically denying the alleged compromise. On the same date the plaintiffs filed applications under Order 23, rule 3 of the Code to record the compromise and pass a decree in accordance therewith.

6. On 9-8-57 the plaintiffs filed several documents with a prayer that they be treated as part of the applications presented on 29-7-57 for recording the compromise. The Court wanted, naturally, to dispose of these applications as quickly as possible, and accordingly fixed 26-8-57 for the hearing, with a direction to the defendant to file a rejoinder if any, by 17-8-57. By this order the Court further specifically directed the parties that the compromise matter would be definitely and finally heard on 26-8-57 and that they should take all necessary steps within proper time.

7. They were further directed to take immediate steps if they wanted to examine any witness on commission or to call for any document or to summon any witness. The State complied with the order of the Court and filed a rejoinder on 17-8-57 controverting the allegations of the plaintiffs and denying that a compromise had been reached. On that date the plaintiffs also filed a list of witnesses to be summoned and deposited the sum of Rs. 1000 on account of expenses for the witnesses and Rs. 36 on account of process fee for summoning the witnesses.

8. The list of witnesses was a long list containing the names of 48 witnesses, including some Ministers, Secretariat Officers, Members of the legislative Assembly and Members of the Parliament who were either in Calcutta or at Patna or at New Delhi. The deposit of Rs. 1000/- was inadequate, and the plaintiffs were accordingly directed to deposit a further sum of Rs. 6000/- and also to file necessary written processes with correct addresses of the witnesses by 22-8-57.

9. They were further directed to give an undertaking to the Court to deposit fourthwith any extra amount needed to meet the cost of the witnesses. The order of the Court made it clear that the summonses will issue after compliance by the plaintiffs of the directions of the Court. I may mention here that there was another batch of 33 title suits, and the allegation was that they were also compromised along with the said 246 suits, but the plaintiffs of most of these 33 suits did not file any application for recording the compromise.

10. Two days before the date fixed for steps, i.e on 20-8-57, the plaintiffs came forward with applications praying to issue notices to the plaintiffs of the other batch of 33 suits and to adjourn the hearing of the compromise matter for a month. The plaintiffs, it seems did not press these applications. On 22-8-57 the plaintiffs wanted to have photographs of the documents filed by the defendant, and the suits were accordingly adjourned to 24-8-57.

11. In the meantime, on 23-8-57, the plaintiffs succeeded in obtaining an order of the District Judge passed in Miscellaneous Case No. 23 of 1957 staying the further hearing of the suits. The suits were accordingly adjourned to 15-11-57 awaiting further orders of the District Judge. The District Judge subsequently vacated the stay order, and the Court was informed of it on 31-10-57. The Court then directed the parties to come ready for the hearing of the compromise matter on the date already fixed, i.e 15-11-57.

12. The parties were duly informed of this order of the Court. Four days before the date fixed for hearing, i.e on 11-11-57, the plaintiffs filed a petition inviting order of the Court on their petition of date 20-8-57 for issuing notices to the plaintiffs of the batch of the other suits before the disposal of the applications for recording compromise. The Court passed an order that this application will be heard on the date fixed, i.e, 15-11-57.

13. The plaintiffs, however, took no steps on that date, and the cases were adjourned till the next date for disposal of the application of date 20-8-57. The Court rejected the prayer to issue notices to the plaintiffs of the other suits and fixed 2-12-57 for hearing of the compromise matter. I may mention that the plaintiffs had not deposited the sum of Rs. 6000/- as ordered by the Court on 17-8-57, and the Court therefore, gave them another chance to deposit the sum within three days and to have the summonses to their witnesses served through special peons as the time left was too short.

14. The Court took care to make it clear in the order itself that on failure to comply with the order of the Court the petition to summon witnesses would stand rejected. On 18-11-57 the plaintiff prayed for ten day's more time to deposit the amount of cost, and they were allowed time till 21-11-57. On that date the plaintiffs deposited Rs. 5000/- instead of Rs. 6000/-.

15. They further did not file written processes for issue of summonses to the witnesses. The result was that summones could not be issued. On 25-11-57 the plaintiffs deposited the balance of Rs. 1000 towards the cost of witnesses and filed written processes. They further made a prayer for issue of dasti summons to the witnesses, and the Court allowed their prayer, of course, at their risk. On 29-11-57 the plaintiffs presented a revision application in this Court, being Civil Revision No. 971 of 1957, which came up for admission on 2-12-57, and the following order was passed by this Court:

“This is an application directed against the order dated 7-11-1957, whereby the trial Court refused to issue notices upon the parties in cases outside the batch of 246 title suits. Fortunately, the learned advocate for the State of Bihar is present and the parties have agreed that the matter under Order 23, rule 3 should be taken up for hearing on 11-1-58. Mr. Baldeva Sahai, appearing for the petitioner undertakes to get applications filed on behalf of all the parties who are interested in the compromise of suits other than 246 tide suits and even if any of them does not appear he will not apply for further adjournment of the case. With this observation this application is dismissed and the Court is directed to take up the matter under Order 23, rule 3 for hearing in the light of the aforesaid compromise on 11-1-58”.

16. It will appear from the above that 11-1-58 was finally fixed for hearing of the compromise matter with the consent of the parties. Still the plaintiffs did not bestir themselves and took no steps in further prosecution of the matter from 2-12-57 till 2-1-58. On 2-1-58 they filed a petition along with processes praying for issue of dasti summons to their witnesses, and the Court allowed the prayer for summoning the witnesses for the date fixed entirely at the risk of the plaintiffs.

17. The presiding officer of the Court, however, was to go on leave from 11-1-58, and, therefore, on 9-1-58 an order was passed for the hearing of the compromise matter on 20-1-58, and the parties were directed to come ready on that date. On 11-1-58 the plaintiffs filed process fee of Rs. 37/8/- along with the written processes. Mr. S.K Jha, another Sub-ordinate Judge, who was then in charge of the Court, passed an order that the time for issuing summons was too short and the plaintiffs might take dasd summons to their witnesses.

18. On 16-1-58 the plaintiffs made an application for further adjournment on two grounds, first, that some of them had been sent to Jail in a case under the B.M.P.O Act, and, second, that the witnesses had to be summoned through Court, This prayer was rejected on 17-1-58, and the parties were again directed to come ready on the date fixed for hearing of the compromise matter. As usual, the plaintiffs were not ready for hearing, and made another application on 20-1-58 for time, but it was rejected by the Court, and the parties were directed to proceed with the hearing of the matter.

19. Since, however, considerable time had passed and there was no sufficient time left on that date, the hearing of the compromise matter was adjourned till the next date. On that date, that is, on 21-1-58, the plaintiffs did not turn up in spite of repeated calls, and their lawyers submitted before the Court that they had no further instruction to proceed with the matter. Thereupon, the Court passed the following order rejecting the applications to record a compromise:

“On behalf of the State of Bihar, Sri Bajrang Sahay, Advocate and on behalf of the applicants Sri N.K Ghosh, Advocate and Sri N.C Rai, Pleader are present. Sri N.K Ghosh, Advocate and Sri N.C Rai, Pleader, submit that they have no further instructions to proceed with the hearing of the petition under Order 23, rule 3 of the CPC. The applicants do not turn up on repeated calls. Since the petitions under Order 23 Rule 3 of the CPC are not pressed and there is no evidence in proof of the allegations made therein, the petitions under O. 23 R. 3 of the CPC are rejected. The lawyers of the partes have been informed of this order in open Court”.

20. Against this order the aggrieved parties in nine of the title suits presented appeals, ten in number, in this Court, which were numbered as Miscellaneous Appeals Nos. 51, 59, 60, 61, 62, 70, 71, 72, 73 and 76, all of 1958. By its order dated 18-4-58 a Division Bench of this Court affirmed the decision of the learned Sub-ordinate Judge dated 21-1-58 and dismissed the appeals with costs.

21. The plaintiffs filed applications before this Court for leave to appeal to the Supreme Court against the said order. These applications were rejected by this Court on 1-8-58.

22. Thereupon, the plaintiffs moved the Supreme Court for special leave to appeal against the said order. Their Lordships of the Supreme Court refused to grant special leave and dismissed the applications on 18-8-58.

23. Then, the plaintiffs made another bid to obtain the reversal of the order of the learned Sub-ordinate Judge dated 21-1-58 and filed applications before him under O. 9, R. 9 and Section 151 of the CPC, which were numbered as Miscellaneous Cases Nos. 20 to 28, all of 1958, for setting aside the said order and restoring the applications under O. 23, R. 3 to their respective files on the ground that they had sufficient reasons for non-appearance as in view of the refusal of the Court to issue summons through Court, the witnesses could not attend Court on the date fixed, i.e on 21-1-58.

24. The ground taken was plainly not tenable. It will appear from the above that after the consent order of the High Court for peremptory hearing on 11-1-58, the plaintiffs went to sleep and took no steps in time to summon their witnesses. Still on their prayer the Court ordered dasti summons to issue. They again defaulted, and contrary to their previous prayer, they wanted service of summons through Court, but for this there was no sufficient time, with the result that the prayer was rejected. After hearing, the learned Sub-ordinate Judge by his order dated 8-9-58 dismissed all these miscellaneous cases with costs.

25. The plaintiffs had also filed an application before this Court for review of its order dated 18-4-58, but subsequently it was withdrawn on 28-8-58.

26. Having exhausted all the possible remedies available under the Code of Civil Procedure and having lost on contest in all the cases, they have thought fit to go back to the point where, they started and came forward with fresh applications under O. 23, R. 3 on the same set of facts and on the same cause of action for recording the alleged compromise. These applications were filed on 30-9-58 and have given rise to these appeals. The learned Sub-ordinate Judge, who heard these applications, was of the opinion that second applications under O. 23, R. 3 on similar facts were not maintainable.

27. Arguments were advanced before him that law did not bar successive applications under O. 23, R. 3. He repelled the arguments on two grounds: first, that although the provisions of Rules 8 and 9 of O. 9 of the CPC did not in terms apply, the principles embodied therein were applicable, and accordingly the applicants were precluded from bringing fresh applications in respect of the same cause of action; and, second, that S. 151 of the Code vested in the Court ample powers to reject such applications, if the ends of justice demanded it, or prevention of abuse of the process of the Court rendered it necessary.

28. He expressed the view that allowance of those applications will be tantamount to circumventing the various orders of the Court, including the High Court, which had become final, and such a course was calculated to cause injustice to the other side and involve abuse of the process of the Court. Although he has expressed no clear opinion, he seems to think that these subsequent applications are barred by the principles of constructive res judicata. He, therefore, refused to go into the merits of the case and rejected the applications. Now, the plaintiffs have come up in appeal.

29. In support of these appeals Mr. Baldeva Sahay representing the appellants has contended that the former applications were dismissed for default and not on merits, and since the provisions of Section 11 of the CPC had no application, the subsequent applications though on cognate facts and on the same cause of action, are not barred.

30. On the other hand, the learned Government Advocate appearing for the State of Bihar argued that though section 11 in terms did not apply, the general principles of res judicata governed these applications, and when the plaintiffs did not adduce any evidence, though especially directed by the Court, to prove the alleged compromise and allowed the applications to be dismissed for default and unsuccessfully appealed against the order of dismissal, the order stands as binding between the parties, and to reopen the dispute and thereby annul all the previous orders passed by the Courts of competent jurisdiction will offend against the principles of constructive res judicata and mean endless litigation, to the great prejudice of the other party which was not at all responsible for the situation in which the plaintiffs have landed themselves by their own default.

31. In support of his contention he relied upon the decisions of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri, ILR 8 Cal 51 and of the Patna High Court in Ramnarain v. Basudeo, ILR 25 Pat 595 : (AIR 1947 Pat 298) and Shvam Sunder Pd. v. Ramdas Singh, AIR 1946 Pat 392. The ratio decidendi of these cases fully support his contention that the principles of constructive res judicata govern such cases.

32. The case of Mungul Pershad Dichit, ILR 8 Cal 51 (PC) arises out of execution proceedings. After five unsuccessful applications for execution the sixth petition was filed by the decree holders on 5-9-1874. Notice in that execution issued on 10-9-1874, and was served on 23-9-1874. The decree-holders filed an application for attachment of properties on 8-10-1874. Sale proclamation was issued on 27th Aughran 1281. On 21-1-1875, the judgment-debtor filed a petition to stop sale for seven days, and the sale was stopped.

33. On 25-1-1875, the debtor applied for stopping sale for three months, admitting the debt and allowing the attachment to remain. The seventh and the disputed petition was filed on 22-9-1877. The Sub-ordinate Judge held that the sixth application was barred by limitation on 5-9-1874, as it was more than three years even from 7-8-1871, the date on which the notice was actually served and much more so from the date of the fifth application which was made on 26-7-1871.

34. He accordingly rejected the application. From that decision an appeal was taken to the High Court of Judicature at Calcutta. The High Court considered it unnecessary to determine the questions arising out of the petition and order of 8th October, 1874, or of any of the proceedings between 5th September, 1874, and 22nd September, 1877, inasmuch as they considered and held, that the decree was barred when the petition of 5th September, 1874, was presented. The Judges said:

“A decree once dead no proceeding by means of an application out of time could revive it.”

35. It will appear that on the sixth petition for execution the Sub-ordinate Judge passed an order for attachment on 8th October, 1874, after service of notice on the judgment-debtor on 23rd September, 1874, to show cause why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it, it was acted upon, and the property sought to be sold under it was attached, and remained under attachment until the last application was made. In these circumstances, their Lordships of the Privy Council observed as follows:

“Admitting, for the sake of argument, but only for sake of argument, that the decree was barred when the sixth application was made, when the notice was served on the 23rd September, 1874,—and when the petition of the 8th of October, 1874 was presented, and that the Sub-ordinate Judge ought to have dismissed the petition upon the ground of limitation, although it was not set up or relied upon by the judgment-debtor, still his order, though erroneous, was valid, not having been reversed…..the Sub-ordinate Judge had jurisdiction upon the petition of the 8th October, 1874 to determine whether the decree was barred on the 8th October, 1871, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the defendant, if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the plaintiff, his decree is valid, unless reversed upon appeal and the defendant cannot upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation. Suppose the order for attachment of 8-10-1874 had been affirmed on appeal by the High Court, upon the ground that it was not barred by limitation, it is clear that the Judge of the original Court, when the application for a sale of the property attached under it was made, could not have rejected the application upon the ground that the decree was barred on 5-9-1874, or on 8-10-1874, when the order was made, upon the ground that the decree was dead when the petition upon which the order was made was presented. Yet the order when affirmed upon appeal could have no greater binding effect than the order itself so long as it remained unreversed”.

36. It will be observed that there was no decision on-merit. The judgment-debtor did not appear in the execution proceeding on the service of the notice-on 23-9-1874, and the Court passed orders for attachment on 8-9-1874, in their absence, still their Lordship of the Privy Council held that the debtors-were debarred from questioning the validity of the order, though erroneous, and the order was final between the parties.

37. The same principles were applied in the other cases relied upon by the learned Government Advocate. These cases clearly lay down that, where a point has once been expressly decided in the execution department, there can be no doubt whatsoever that decision binds the parties in all subsequent proceedings. It has also been laid down that in cases where a point has not been directly decided but is such as must be deemed to have been necessarily decided before an order of execution was passed, the decision is still binding.

38. For instance, objections that the application is not in accordance with the law, or that it is barred by time or that the decree is not capable of execution or that the Court has no jurisdiction to entertain the application or that the person applying for execution has no right to do so are objections, which if not raised before the execution is ordered, have been decided adversely to the objectors by the execution order.

39. The effect of these decisions is that although S. 11 of the Code 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, too, do apply to orders and decisions passed in execution cases. I do not think it necessary to multiply authorities or to discuss at greater length the ambit of the scope of the general principles of res judicata.

40. They have been the subject of consideration by their Lordships of the Supreme Court in the cases of Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 and Mohanlal Goenka v. Benoy Kishna Mukherjee, AIR 1953 SC 65. In the former case their Lordships quoted with approval the following observations of Sir Lawrence Jenkins in delivering the judgment of the Board in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, 43 Ind App 91 : (AIR 1916 PC 78).

“In view of the arguments addressed to them, their Lordships desire to emphasize that the rule of res judicata, while founded on ancient precedent is dictated by a wisdom which is for all time. ‘It hath been well said’ declared Lord Coke, interest reipublicae ut sit finis litium — otherwise great oppression might be done under colour and pretence of law (6 Coke 9a).”

41. They have laid down that the doctrine of res judicata is based on general principles of jurisprudence, and after discussion of several decisions of the Privy Council and of different High Courts, Mahajan J. (as he then was), delivering the judgment of-the Court, observed as follows:

“The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by S. 11 of the Code and has application to suits alone when a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of a competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgment of Courts of exclusive jurisdiction, like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute”.

42. In the second case also on a consideration of several decisions of the Privy Council and the High Courts of India, including this High Court, their Lordships of the Supreme Court have laid down that the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt, and that, therefore, 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 sale 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.

43. They have further held that even an erroneous decision on a question of law operates 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, and accordingly 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. The principles deducible from the above decisions is that section 11 is not exhaustive of the general principles of res judicata. It is, however, exhaustive in respect of cases which directly come within its ambit, and in those cases if S. 11 does not strictly apply, the Court cannot invoke the general principles of res judicata. The principle of conclusiveness of judgment is much wider and is a part of the general principles of res judicata, and those principles have been held by authorities to be good principles apart from the provisions of the Code of Civil Procedure.

44. Applying these principles to the present cases it will appear that the binding force of the impugned decision of the learned Sub-ordinate Judge depends upon the general principles of res judicata and not upon section 11 of the Code. In my considered opinion, although section 11 does not apply in terms to the present cases, there is no reason why the principles underlying that section should not apply to the applications under Order 23, rule 3. It will appear that the appellants had unsuccessfully challenged the said order both in appeals to his High Court and by separate applications under Order 9, rule 9 of the CPC.

45. Now, to re-agitate the same question over again will mean endless litigation and unnecessary harassment to the other side. I accordingly hold that the fresh applications under Order 23, rule 3 are clearly barred by the principles of constructive res judicata. The decision of the learned Sub-ordinate Judge, therefore, was correct, I may in this connection dispose of one argument which was advanced by Mr. Baldeva Sahay. His contention was that there was no provision for appeal against the order rejecting the applications to record a compromise under O. 23, rule 3. Order 43, rule 1(m), provides for an appeal from an order under R. 3 of O. 23 recording or refusing to record an agreement, compromise or satisfaction. The contention of Mr. Sahay is that this provision does not include an order dismissing an application for default. His contention is that rt includes an order passed on contest. In my opinion, this contention is not valid and cannot be accepted as correct.

46. rule 1(c) of Order 43 provides for an appeal from an order under R. 9 of O. 9 rejecting an application for an order to set aside the dismissal of a suit. A similar argument was advanced in Doma Choudhary v. Ram Naresh Lal, 1958 BLJR 783 : (AIR 1959 Pat 121) and it was contended that rule 1(c) contemplates an order of rejection on merits. A Full Bench of this Court overruled this objection and has laid down that no matter whether an application under rule 9 of Order 9 is dismissed for default or on the merits, an appeal is competent under Order 43, rule 1(c) of the Code and that there is no ground for discriminating between rejection of the application on merits and its rejection for default.

47. In my opinion, the ratio decidendi of that case governs the present case also, and I must hold that R. 1(m) of O. 43 contemplates an order recording or refusing to record an agreement, compromise or satisfaction, no matter whether those grounds are based on merits or default. Therefore, the appeals of the appellants against the impugned orders of the learned Sub-ordinate Judge to the High Court were competent, and the decisions in those appeals were binding between the parties.

48. I may allude to one argument advanced on behalf of the State of Bihar, and it is this that O. 9 read with Section 141 of the CPC applies to these cases, and, therefore, the only remedy available to the appellants was to apply under rule 9 of Order 9 to set aside the order of dismissal and that when they have already taken advantage of this provision, though unsuccessfully, and their applications under O. 9, R. 9, have been dismissed on contest, the order of the learned Sub-ordinate Judge dated 21-1-58 is now final.

49. In the view which I take of these cases, it is not necessary to express any concluded opinion about the applicability of O. 9 read with S. 141 to such applications. The appellants, however, can have no grievance. On the assumption that O. 9 of the Code applies, they applied under O. 9, R. 9, for restoration of the former applications after setting aside the order of dismissal and failed. Any way, the greatest impediment in this way is the doctrine of res judicata.

50. It follows that these appeals have no merit and are accordingly dismissed with costs.

51. Ramaswami, C.J:— I agree.

R.G.D

52. Appeal dismissed.