Sahai, J.

1. The principal point which arises for consideration in this case is as to the extent and scope of applicability of the doctrine of constructive res judicata in execution cases. This Bench has been constituted because it was felt that the Full Bench decision in Uchit Lal Misser V/s. Raghunandan Tewari, ILR 14 Pat 52 : (AIR 1934 Pat 666) required further consideration.

2. The decree-holders auction purchasers have filed both the Miscellaneous appeal and the Civil revision against an order dated the 16th December, 1957, passed by the Additional District Judge, 2nd Court, of Muzaffarpur whereby he has set aside the sale of Kaimi Kasht lands of Ramphal Sahni, the judgment-debtor, held on the 12th March, 1956, in execution of a money decree. They have been made analogous, and have been heard together. This judgment will govern them both.

3. The facts of the case may be shortly stated. Money suit No.62 of 1953, was decreed against Ramphal Sahni and his son on the 16th November, 1953. The decree-holders filed an application for execution of the decree on the 8th August, 1955. An order dated the 6th September, 1955, shows that notice under Order XXI, Rule 22 of the Code of Civil Procedure (hereinafter to be referred to as the Code) was served. The order dated the 1st October, 1955, shows that attachment was effected. It appears from the order dated the 19th November, 1955, that notice Under Sec.13 of the Money Lenders Act was also served. No objection relating to valuation having been raised by the judgment-debtors, the court accepted the valuation given by the decree-holders by its order dated the 11th January, 1956, and passed an order for issue of sale proclamation fixing the 12th March, 1956 for sale. Two lots of the judgment-debtors. Kaimi Kasht lands were sold on the 12th March. The order of that date shows that the decree-holders themselves became the purchasers, and that set off prayed for by them as provided in Rule 72 (2) of Order XXI was allowed. The sale was confirmed on the 12th April.

4. It may be mentioned that Sec.49-M of the Bihar Tenancy Act was amended by the Bihar Tenancy (Amendment) Act 1955. As a result of that amendment, the words a raiyat, who is a member of the scheduled tribes, scheduled castes or backward classes have been substituted in place of the words an aboriginal raiyat in Clause (b) of Sec.49-M with which clause we are concerned in this case. The amending Act came into force on the 2nd November, 1955. The clause as it stands after the amendment, reads :

"49-M Restriction On sale of tenants rights under order of Court:-

- (1) Notwithstanding any. thing in this Act. * * * * * * * (b) no decree or order shall be passed by any Court for the sale of the right of a raiyat, who is a member of the scheduled tribes, scheduled castes or backward classes in his holding or in any portion thereof, nor shall such right be sold in execution of any decree except as provided in Sub-section (2 ). "

In Sec.49-B, as introduced by the amending Act, the expression backward classes has been defined to mean "such classes of citizens as may be declared by the State Government by notification in the Official Gazette, to be socially and educationally backward". A notification dated the 7th February, 1956, was published in the Bihar Gazette D/- 22-2-1956 giving a list of the classes of citizens, who were declared by the Government of Bihar to be socially and educationally backward. According to this notification, a Mallah is included in the list of backward classes for the whole of the State of Bihar.

5. The judgment-debtors are admittedly Mallahs by caste. They did not appear in the execution case at any stage. It was on the 28th September, 1956, that Ramphal Sahni alone filed an objection under Sections 47 and 151 of the Code with a prayer to set aside the sale. He alleged in the application that the processes in the execution Case had not been served, and that, in view of Sec.49-M of the Bihar Tenancy Act