Judgment

HEGDE, J.: This appeal against the judgment of the Patna High Court dated the 3rd February, l964 in its Appellate Order No. 99 of 1963 was filed after obtaining special leave from this Court. It arises from a proceeding under Sec. 47, Civil Procedure Code. In execution of a mortgage decree, the decree-holders sought to proceed against Bakasht lands of the judgment-debtors. The judgment-debtors objected to the same on the ground that the execution was barred under Section 4 (d) of the Bihar Land Reforms Act, 1950 (to be hereinafter referred to as the Act). . But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of Section 4 (d) pleaded is not tenable. The decision of the execution court was affirmed in appeal but reversed in second appeal by the High Court.

2. The two questions that arise for decision in this appear. are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.

3. We shall now briefly set out the material facts of the case. The mortgagees, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage. The property mortgaged was an Estate within the meaning of the Act. That property included both Baksht lands as well as other lands. The Act came into force after the passing of the aforementioned preliminary decree. The decree-holder filed petition for passing a final decree on September 19, 1955. The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under Section 3 (1) of the Act. A final decree was passed in the mortgage suit on October 1, 1956. Thereafter the mortgagees applied under Section 14 of the Act and got determined the compensation to which they were entitled under the Act. It is said that they did not proceed any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage-decree against the Bakasht lands. The judgment-debtors resisted that execution by filing an application under Section 47, Civil Procedure Code (Misc. Case No. 94 of 1959) on the ground that the decree cannot he executed in view of the provisions of the Act. That application was dismissed for the default of the judgment-debtors on September 12, 1959. A second application raising the same ground (Misc. Case No. 110 of 1959) was filed by the judgment debtors on September 24, 1959. That again was dismissed on July 23, 1960 for default of the judgment-debtors. A third application raising the same ground of objection (Misc. Case No. 91 of 1960) was filed by the judgment-debtors on September 12, 1960. That application was dismissed on January 4, 1962 after examining the contentions of the parties. Therein the execution court came to the conclusion that the objection raised by the judgment-debtors is barred on the principles of res judicata and further that the same has no merits. This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.

4. We shall first take up the contention that the objection taken by the judgment-debtors is barred by principles of res judicata. Though at one stage learned Counsel for the appellant-decreeholders attempted to bring the case within Explanation 5,Section11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. Cases Nos. 94 and 110 of 1959 for default of the judgment-debtors can be said to be a final decision of the court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown