The principle of constructive res judicata applies to an execution proceeding also.

HARI LAL AGRAWAL, J.

1. This is an appeal under Sec. 47 of the Civil P.C. by the decree-holder. He had filed a suit for declaration of his title to and confirmation of possession or in the alternative, recovery of possession of certain immovable property and obtained a decree. He has started the present execution case out of which this appeal arises praying for delivery of possession of the property in question after demolishing certain flimsy construction described as Docharas.

2. The judgement debtors took objection to the executability of the decree. Their further objection was that there being no direction in the decree to deliver vacant possession, the court could not make any order to that effect in favour of the decree holder. The application of the judgement debtors was registered as a miscellaneous case under Sec. 47 of the Code.

The decree holder filed a rejoinder in the said miscellaneous case and one of the points raised by him was that the objection petition of the judgement-debtors was not maintainable being barred by the principles of constructive res judicata, as no such objection was filed after the service of O.21, R.22 notice and the executing court had already ordered for effecting delivery of possession before the filing of the miscellaneous case.

On the filing of the objection petition the execution case was every time postponed until the disposal of the miscellaneous case. The executing court ultimately held that the objection petition was maintainable in law as it was filed before any order under Rule 23(1) of Order 21 was actually passed by the Court. It further held that the decree was executable and the decree holder was entitled to get delivery of possession over the suit land, but no order for demolition of the structures could be passed as there was no specific direction to that effect in the decree. The miscellaneous case was accordingly allowed in part.

3. The decree holder then filed an appeal in the court of appeal below. The lower appellate court also took a similar view and held that "in absence of any direction in the decree to remove and demolish the structures of the defendants from the suit land, no order for removal of the same can be passed by the executing court". The appeal was accordingly dismissed. The decree holder has now come to this court.

4. Mr. Nagendra Rai, appearing in support of the appeal, contended that the decree holders are entitled to be put in actual physical possession of the suit property and whatever is required to be done for this purpose has to be done by the executing Court. In reply to the judgement-debtors argument that the decree being merely for declaration of title and confirmation of possession cannot be executed, he said that on a correct construction of the decree, if interpreted with the side of the pleadings in the suit and the judgement, it should be held that the decree holders have been given a right to be put in actual possession of the property and the application for execution, therefore, is perfectly maintainable. Alternatively, he argued that the question of executability of the decree must be decided in favour of the decree-holders at this stage by reason of the principle of res judicata.

5. The bar of res judicata has been argued by Mr. Nagendra Rai, appearing for the decree holder, on the ground that the petition filed by the judgement-debtors-objectors to the executability of the decree itself having been filed out of time, the plea was not open to be considered. This argument is based on these facts. The notice under Order 21, Rule 22 was ordered to be issued by the executing court on 16-3-1972. The service return was received on 26-4-1972. The decree holder filed an affidavit on 1-5-1972, in support of the validity of the service of the notice and it was thereafter that on the 12th of May, 1972 the executing court directed the decree holder to deposit the travelling allowance of the Nazir and to file pro forma of the delivery of