Dismissal of an application under Section 47 of the CPC in default does not bring about the bar of res judicata or constructive res judicata within the meaning of Section 11 of the CPC in the institution of a second application on the same cause of action.

Untwalia, J.

1. All these three miscellaneous appeals referred to Full Bench have been heard together as the common question of law involved in them is whether dismissal of a judgment-debtors application u/s. 47 of the Code of Civil Procedure hereinafter called the Code in his default is a bar to the maintainability of an identical or a similar application by the judgment-debtor on the principles of res judicata.

2. By order dated 13th of April, 1967 R.K. Choudhary and G.N. Prasad, JJ., referred miscellaneous appeal 175 of 1962 to a larger Bench as in respect of the point aforesaid there was a conflict of views expressed in two Bench decisions of this Court, namely, Ramnarain Singh V/s. Basudeo Singh, AIR 1947 Pat 298 and Bhagwati Prasad Sah V/s. Radha Kisun Sah, AIR 1950 Pat 354. Since this was an appeal from an original order, obviously the reference was under Rule 3, Chapter V of the Patna High Court Rules, and only the questions of law could be referred. No question for answer by the Full Bench was, however, framed by the Division Bench. Miscellaneous Appeal 248 of 1964 which is an appeal from an appellate order, in view of the earlier reference to the Full Bench in miscellaneous appeal 175 of 1962 as also because of the conflict between the two Bench decisions of this Court, was also referred to a larger Bench by Ramratna Singh and Shambhu Prasad Singh, JJ., on the 10th of July, 1967. Since this is a miscellaneous second appeal, manifestly the reference was under Rule 2. Chapter V of the Patna High Court Rules, and, therefore, not only the point of law but the whole case was for decision before the Full Bench. Miscellaneous appeal 6 of 1964 which again is an appeal from original order came up before the same Bench consisting of Ramratna Singh and Shambhu Prasad Singh, JJ., for hearing, and this was also referred to the Full Bench by their Lordships order made on the 14th September, 1967, without formulating any question of law. In this appeal as also in miscellaneous appeal 175 of 1962, we have framed and answered the question of law only as will be stated hereinafter. These two appeals eventually will have to be placed before the appropriate Division Benches for final disposal.

M.A. 175 of 1962

3. Sarjug Singh, one of the judgment-debtors, is the sole appellant in this case. Basistha Narain Singh is decree-holder respondent No. 1. The latter proceeded to execute his decree in execution case No. 9 of 1953 in the Court of the 2nd Additional Subordinate Judge, Muzaffarpur. It appears that the talika of the properties sought to be proceeded against in the execution case was altered at a subsequent stage by amendment of the execution petition. The judgment-debtor appellant filed an application on the 8th of August, 1961 under Section 47 of the Code, which was registered and numbered as miscellaneous case 20 of 1961, objecting to the execution chiefly on the ground that it was barred by limitation. The application was dismissed on the 20th of January, 1962 (1961 is a mistake) in his default and in presence of the decree-holder respondent, by an order in the following terms--

"139: 20-1-1961 Parties files (sic) hazari. Case called out. O.P.s lawyer turns up A.P. does not turn up after repeated calls. The Hazari on behalf of the A.P. discloses the name of one Ramsobhit Singh as witness for the A.P. but none responded on repeated calls. The lawyer is sent for but he is not available. The miscellaneous Case is, therefore, dismissed for default."

Shortly after the dismissal, on the same date another application under Section 47 of the Code on identical lines was filed by the appellant, which was registered as miscellaneous case No. 4 of 1962. This miscellaneous case has been dismissed by the learned Additional Subordinate Judge by his order dated the 9th of June, 1962 merely on the ground that in view of the decision of a Full Bench of this Court in Baijnath Prasad Sah V/s. Ramphal Sahni, 1962 BLJR 110 = AIR 1962 Pat 72 (FB