N.P Gupta, J.:— In this case vide order dt. 28.5.97 show cause notice was ordered to be issued and the record of the trial court was ordered to be summoned. While so issuing notice, the proceeding pending in the learned court below was stayed till further orders. Thereafter, after service was effected, vide order dt. 25.4.98 the revision petition was admitted. Then when the matter came up for consideration of the stay petition, vide order dt. 3.4.2000 the record of the main execution petition was also requisitioned. After receipt of the record the case was finally taken up on 27.7.2000 and that day with the consent of the learned counsel for the parties instead of considering the stay petition, the main revision itself was taken up for hearing which was concluded on 1.8.2000

2. By this revision the decree holder assails the order of the learned Executing Court dt. 28.3.97 whereby the learned court below dismissed the petitioner's application filed under Sec. 11 read with Sec. 141 and 151 C.P.C holding that the objection petition filed by the present non-petitioners is not barred by principles of constructive res judicata.

3. The case has a chequered history even for the purposes of decision of the present controversy which cannot be avoided from being briefly recapitulated.

4. It is way back on 31.10.80, unfortunately for the petitioner, a decree for eviction happened to be passed against one Shivdas s/o Shri Narayandas Ji Sad. This decree was put in execution in the year 1981 vide Execution Petition No. 16 of 1981, as the things had it the original judgment-debtor Shivdas expired and the house came into possession of the person named in the present execution application being Shanti widow of Shri Shivdas, Om Prakash S/o Shri Shivdas, Shyama S/o Shri Shivdas, Bhanwari W/o Shri Ganeshdas, Lala S/o Ganesh Das, Chinu S/o Shri Ganesh Das who according to the decree-holders were the legal representatives and heirs of the judgment debtor Shivdas and in the possession of the decreed premises, consequently the present execution application was filed by the petitioner on 10.4.89

5. On filation of this execution, vide order dt. 21.4.89 notices were ordered to be issued against the persons sought of the proceeded against, under Order 21 Rule 22 C.P.C fixing 28.7.89 as the next date. On this date Shir Vijay Singh Choudhary entered appearance on behalf of Ramesh, then on 17.11.89 Shri Choudhary filed Vakalatnama on behalf of some more judgment debtor and gave undertaking to file Vakalatnama on behalf of some more judgment debtor and gave undertraining to file vakalatnama on behalf of the rest of the judgment-debtors. The case thereafter went on being adjourned from dates after dates for filing Vakalatnama, and so also for reply to the said notice under Order 21, Rule 22 C.P.C However, when no reply was filed, on 22.2.91 warrant under Order 21, Rule 35 C.P.C was ordered to be issued. Thereafter on 12.7.91 one Shri S.M Singhvi appeared for the judgment-debtor and wanted time to file reply. However on the next date again nobody appeared for judgment-debtor and the warrant was ordered to be issued for delivery of possession.

6. It was on 22.4.1993 that a part of the decree was executed, inasmuch as some part of the premises were physically delivered to the judgment-debtor.

7. It so further happened that a regular civil suit was filed by some of the judgment-debtors inter alia seeking to contend the property to be their ancestral property and attempted to trace the title by giving the pedigree table. In that suit temporary injunction applications were also filed then civil misc. appeals were also filed on behalf of the widow and sons of Ganeshdas which appeals were dismissed on 26.9.96 Against dismissal, a revision petition was filed before this Court being S.B Civil Revision Petition No. 999 of 1996, wherein at admission stage and without notice to the present petitioner, vide order dt. 27.11.96 This Court (Hon'ble R.R Yadav, J.) purported to accept the innocuous request of the petitioners therein, to allow to withdraw the suit as well as the revision petition with a liberty to file an objection under Sec. 47 C.P.C Accordingly it was directed that in case an application for withdrawal of the suit is moved under Order 23 C.P.C before the trial court, it shall be withdrawn with liberty to the revisionist to file objection under Sec. 47 C.P.C It was also ordered that when an objection is filed by the revisionist before the Executing Court u/S. 47 C.P.C relating to execution, discharge and satisfaction of the decree, the Executing Court would be at liberty to pass appropriate orders on merits. It is despite this order that the revisionist therein neither filed application for withdrawal of the suit nor filed objections u/S. 47 C.P.C, with the result that the petitioner decree holder was obliged to move an application to the Executing Court to proceed with the execution, and thereupon the learned Executing Court on 27.1.1997 found that despite expiry of about two months neither the plaintiff has withdrawn the suit nor any objection u/S. 47 C.P.C has been filed and therefore ordered possession warrant to be issued for execution of the rest of the decree. It is thereupon that on 19.2.1997 that the five persons being the widow and sons of Shri Ganeshdas (hereafter referred to as the descendants of Ganeshdas) filed the objection petition purporting to be u/S. 47 C.P.C

8. Thereupon the present petitioner on 24.2.1997 submitted the present application contending that in view of non filing of objections in response to the notice under Order 21 Rule 22 C.P.C, the objections raised in the present objection petition are barred by the principles of constructive res judicata. Other grounds of constructive res judicata were also taken, which I need not go into for the present purposes. To this application a reply was filed on 3.3.1997 contending that the objectors were wrongly impleaded as judgment debtors, as neither they nor their predecessor Ganeshdas was a party to the suit, decree was only against Shri Shivdas while the objectors are not the heirs of Shivdas thus the objectors are neither judgment debtors nor the decree can proceed against them. It is on this basis that the contention of constructive res judicata was controverted. It was also contended that considering totality of the circumstances this Court in the aforesaid revision has advised and directed the objectors to file the present objection petition. Accordingly it is not open to the decree-holder to object to this objection, and even in the guise of the constructive res judicata. Reference was also made to the previous litigation referred of above. It was also given out that the suit is withdrawn on 18.2.1997 and since no time frame was provided in the order of this Court, mere delay in withdrawal of the suit cannot be projected against the objectors.

9. Learned court below in the impugned order held that since this Court in the order dt. 27.11.966 had permitted that after withdrawal of the original suit the objectors will be free to file objection petition which will be decided on merits and therefore it is not barred by principles of res judicata.

10. Assailing the impugned order, two fold submissions have been made by the learned counsel for the petitioner, firstly being that in view of the facts that the present objectors having failed to raise any objection in response to the notice issued by the Executing Court under Order 21 Rule 22 C.P.C, they are barred from raising any objection against executability of the decree against them on the principles of res judicata/constructive res judicata. Strong reliance has been placed on two Division Bench judgments of this Court being in Ghisalal v. Seth Kanhaiyalal (2). The second submission made was that all said and done vide order dt. 27.11.1996 this Court had permitted the petitioner to raise objections only under Sec. 47 C.P.C and since gravamen of the objection petition filed by the objectors is that they claimed to be having independent title and not being in possession in the capacity of the legal representative or heir of the judgment debtor Shiv Das, they are not bound by the decree and since no decree had been passed either against them or against Ganesh Das, the decree cannot be executed against them, which objections does not fall within Sec. 47 C.P.C inasmuch as Sec. 47 comprehends questions arising between the parties to the suit or their representative and relating to execution, discharge or satisfaction of the decree. Since the objectors do not claim to be either party to the suit in which the decree was passed or to be the representatives of any party to the suit in which decree was passed, on merits the objection petition is exfacie not maintainable.

11. Controverting these submissions Mr. R.K Thanvi, the learned counsel for the objectors non-petitioners contended that the notices that are said to have been issued are notices only for showing cause as to why they should not be proceeded against as legal representatives/heirs of the judgment debtor Shivdas and therefore failure to respond to those notices cannot attract principles of res judicata, on the question about executability of decree against them on account of their not being a party to the suit nor the decree having been passed against them or against Ganesh Das. The second alternative submission is that in any case even on the face of the execution application dt. 10.4.89, no notices were ordered to be issued against Jagdish and Laxmikant, as such even on the petitioner's own contention the principle of res judicata is not attracted qua the objectors Jagdish and Laxmikant. Reply to the other contentions learned counsel contended that since the controversy in the present revision is only to the effect as to whether the objection petition is barred by res judicata or not, it is not open to the petitioner to contend that the nature of the objection raised by the objectors do not bring the matter within Sec. 47 C.P.C and this Court cannot go beyond the scope of the revision.

12. I have given my anxious consideration to the rival contentions, have gone through the record and have also gone through the two judgments cited by the learned counsel for the petitioner.

13. In Amar Singh's case after referring to a few judgments of Madras High Court and Allahabad High Court, preferring Madras view it was held as under:—

“I cannot appreciate, on a consideration of general principles of constructive res judicata, why a judgment-debtor who ignores the notice of a court requiring him to show cause why execution should not issue against him and omits to raise any objection should be permitted to ignore an adjudication directing execution at a later stage. The effect of the order is that all pleas in bar, if any, go by the board.”

14. It was still further held that “There is absolutely no justice or equity in his favour and it will be wholly undesirable to set a premium on default and contumacy. The consideration that a notice under Order 21 Rule 22 is not accompanied by a copy of the application for execution as also those relevant in connection with suits should not have much weight in execution cases which are concerned merely with the enforcement of decisions binding on parties”.

15. The judgment in Ghisalal's case is still stronger, inasmuch as, in that case on levying execution, in which execution application the judgment debtor filed objections which were earlier dismissed in default. Thereafter when the fresh execution application was filed, the decree holder made an application under Order 21 Rule 66 C.P.C for issuing a proclamation of the intended sale, on receipt of that notice the judgment debtor filed objections, the trial court over-ruled the objection on merits. In appeal, the Hon'ble Division Bench perused the previous execution file to find out the nature of objection taken in the course of previous execution, and its result, and found that the nature of the objection taken in the subsequent execution was not taken in the previous objection petition. It was in these circumstances held by referred to and relying upon the judgment of the Hon'ble Supreme Court in Mohanlal Goenka v. Benoy Krishna Mukherjee (3) that “the principle of constructive ‘res judicata’ is applicable to execution proceedings and the law is well settled that where a judgment-debtor failed to raise all his objections in execution made by the decree-holder, which he might and ought to have made, all such objections will be deemed to have been decided against him…….” the inevitable result, therefore, is that the judgment-debtor is debarred from raising this objection in the present execution”.

16. Thus, the legal principle is well settled that if the judgment debtor fails to raise an objection in response to notice under Order 21 Rule 22 C.P.C then subsequently he is debarred from raising any objection against executability of the decree against him.

17. The learned court below thus was clearly in jurisdictional error in not holding the objections to be barred by principles of res judicata. So far as the order of this Court dt. 27.11.1996 is concerned, that order did not exclude this aspect of the matter, rather as would be clear from the perusal of that order that this Court was acceding to a wholly innocuous request, and never meant to pass any such order as may adversely affect the rights of the present petitioners. That apart all that was ordered was “that when an objection is filed by the present revisionist before executing court under Sec. 47 CPC relating to execution, discharge and satisfaction of the ex parte decree, the executing court would be at liberty to pass appropriate order on merits”. Thus no fetters were put on the powers of the learned trial court to decide the objection even against the objectors if they were ex facie barred by principles of res judicata/constructive res judicata. In my humble view such dismissal of the objection shall also have very much fallen within the expression “to pass appropriate orders on merit”.

18. But then even this finding does not solve the problem inasmuch as the learned counsel for the non-petitioners is very much right when he contends that in the earlier execution petition no notice was given to Jagdish and Laxmikant. Therefore as a consequence of the above finding the objection petition only so far as it purports to be filed by the objectors other than Jagdish and Laxmikant would be hit by principles of res judicata. Consequently, the learned Executing Court would be free to proceed with the execution of the decree against the objections being Ramesh, Bhanwari Devi and Rakesh @ Chhinnu but will not proceed in execution of decree against Jagdish and Laxmikant, till the objection filed on their behalf are disposed by the learned court below.

19. Coming to the second objection of the non-petitioner about the objections not falling within the scope of Sec. 47, true it is it is not within the scope of this revision and no such objection has been raised by the petitioner in this regard before the learned court below and therefore I would not be well advised to say anything on the merits of the question as to whether the objections fall under Sec. 47 C.P.C or not? However in view of the peculiar circumstances of the case viz. that the decree was passed for eviction and was passed way back in the year 1980 and the sequence of facts mentioned above to make it clear that the unfortunate decree holder is simply being made to run from pillar to post, if the petitioner chooses to raise an objection about the objection, not falling within Sec. 47 C.P.C the learned Court below is directed to decide such objection most expeditiously, and as a preliminary objection.

20. It is further made clear to safe guard the objectors' right that in case the learned court below finds the objection to be not falling within Sec. 47 C.P.C but falling under Order 21 Rule 97 then it will be open to the learned court below to convert these objections to one under Order 21 Rule 97 and then to decide them on its own merits.

21. I may invite the attention of the learned court below to the legal position, as an Executing Court for its general guidance, that according to Order 21 Rule 97 C.P.C, wherever holder of a decree for possession of immovable property or purchaser of any such property is resisted or obstructed by any person in possession of the property, he may make an application complaining of such resistance. These provisions have been interpreted by Hon'ble the Supreme Court in various judgments including Brahmdeo Choudhary v. Rishikesh Prasad Jaiswal (4) and Shreenath v. Rajesh (5) permitting the stranger to file objection and requiring such objection to be heard and decided by the Executing Court before dispossessing such objections. According to sub-rule (2) of Rule 97, where any objection application is made under sub-rule (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. According to Rule 101 all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall be deemed to be having jurisdiction to decide such questions. Under Rule 98 and Rule 100, upon determination of the question referred to in Rule 101, the Court is to make order as contemplated therein. Rule 105 provides procedure for hearing of the application, according to which the Court before which the application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application, on which date or on any adjourned date, if the applicant does not appear when the case is called on for hearing it may dismiss the application. Likewise if the opposite party does not appear court may hear the application exparte and pass such order as it thinks fit. Of course, according to Rule 103 the order made consequent upon adjudication under rule 98 or Rule 100, is to have the same force and is subject to the same condition as to appeal or otherwise as if it was for a decree.

22. This expression in Rule 103, enacts a fiction thereby making to order to be having the same force and subject to the same conditions as to appeal or otherwise, as if for decree, but then it never means that procedure for adjudication of the objection is to be that of a regular suit which culminates into decree. In my view even on the basis of language of Rule 103, the adjudication of objection under Order 21 Rule 97 is not required to be made by adopting the procedure as if it was a civil suit culminating into decree. The objections can be and should be determined on the basis of affidavits filed by the respective parties and documents that may be submitted.

23. To conclude the revision is partly allowed. The impugned order is set aside in the manner that the objections filed by Ramesh, Rakesh @ Chhinnu and Bhanwari Devi are held to be barred by res judicata (constructive res judicata). The learned court below is directed to proceed with the matter so far as it relates to the objection filed by Jagdish and Laxmikant only keeping in view the observations made above. At the same time, in view of the fact that the decree is one for eviction, having been passed way back on 31.10.80, and the decree holder having not been able to get full fruits of the decree, in the interest of justice, the learned court below is directed to proceed with the matter most expeditiously. In making this order of expediting I am just inviting the attention of the learned court below to the directions made by the Hon'ble Supreme Court in concluding part of para 15 of the judgment in Brahmdeo Choudhary's case (supra). Parties are left to bear their own costs.