The doctrine of constructive res judicata does not apply to execution proceedings under Section 48 C. P. C.

CHANDRA REDDY, C. J.

( 1 ) THIS appeal has been referred to a Full Bench by our learned brothers Manohar Pershad and Kumarajju JJ. as they thought that it involves important questions of law which will be adverted to presently.

( 2 ) THE facts and the circumstances leading upto the litigation may be briefly related. The appellant obtained a decree against the respondents on the 2 8/12/1931. He levied execution of his decree on the 31st of October 1932 seeking to attach all the move-able and immoveable properties of the judgment-debtor and part satisfaction was recorded. Subsequently, a number of execution petitions were filed with prayers either for attachment of the properties of the judgment-debtors or for his arrest. It is not necessary to make a detailed reference to them except to the one which preceded the execution petition in question and that is the one dated 25-8-1951. In this petition, the decree-holder prayed for attachment of the properties of the judgment-debtors. It must be noted here that by this time more than 12 years had lapsed from the date of the decree. Notwithstanding this, the judgment-debtors did not raise any objection that it was barred under Section 48 C. P. C. However, as the appellant did not pay the process fee, it was dismissed for default. Within three years thereof, the present execution petition giving rise to this appeal was filed. This time also the mode in which the assistance of the Court was sought was by attachment of the immovable properties of the judgment-debtors.

( 3 ) THIS was resisted by the judgment-debtors on the plea that the decree became barred under Section 48 C. P. C. The executing Court disallowed this objection since the prayer in the present execution petition was the same as in the previous one viz. , the attachment of the properties. The trial Court accordingly ordered execution to. proceed. On appeal, the District Judge differed from the conclusion of the trial Judge and dismissed the execution petition. The decree-holder, aggrieved by this decision, brought the present appeal.

( 4 ) INITIALLY, it came up for hearing before Srinivasachari J. It was argued before the learned Judge that the present E. P. could not be regarded as a fresh application so as to be hit by Section 48 C. P. C. and secondly that the judgment-debtors were precluded from taking the objection that it was barred by limitation having failed to do so in the previous execution petition which was presented more than 12 years after the date of the decree. The learned Judge, being of opinion that these points were not free from difficulty. , desired that they should be disposed of by a Division Bench. When it was posted before a Division Bench consisting of Manohar Pershad and Kumarayya JJ. , they returned the matter to the Full Bench as they thought that these points are of general importance affecting several decrees. This is how the matter comes up before this Full Bench.

( 5 ) TWO points are presented by the learned Counsel for the appellant: (i) the prayer being identical, namely, the attachment of the properties of the judgment-debtors in the present execution petition and in the preceding one, the present E. P. cannot be described as a fresh application within the purview of Section 48 and (ii) that the doctrine of constructive res judicata comes into play in this case in that the judgment-debtors did not invoke Section 48 C. P. C. in the prior execution petition, which was preferred more than 12 years after the making of the decree.

( 6 ) ON the first question, it is contended by the learned Counsel that there is no scope for invocating Section 48 as the present execution petition sought attachment of the immoveable properties of the judgment-debtors in the previous petition and consequently it could not be equated to a fresh application as contemplated by Section 48 C. P. C. This argument is sought to be founded upon Sadashiv v. Raja Kistappa Naik, ILR 1951 Hyd. 84 : (AIR 1950 Hyd 15 ). We do no

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