Chhangani, J.—This is an appeal by Amarsingh under Sec. 96 read with Sec. 47 C.P.C. against the order of the District Judge, Jaipur City, dismissing his objection in an execution sase.

2. The relevant facts are briefly as follows :—

Seth Anantram Vijalal, the predecessor-in-interest of the present respondent obtained a decree for Rs. 19,080/7/3 against Thakur Kishan Singh of Patoda from the Dewani Adalat of the former Jaipur State on 5th November, 1948. After the death of the original judgement-debtor Kishan Singh one Jagatsingh, Jagirdar of Patoda was substituted as the legal representative of the original judgment-debtor on 10th of August, 1927. As the judgement-debtor was a Jagirdar, proceedings for satisfaction of the decree had to be taken in the Bachat department of the former Jaipur State. After the promulgation of the Code of Civil Procedure in the integrated State of Rajasthan, the proceeding in the Bachat department came to an end on 25th of January, 1950. Gulabchand respondent, the successor of the decree-holder, thereafter on 26th of may, 1951 took out execution proceedings against the appellant Amar Singh treating him as the legal representative of the judgmet-debtor. A notice under Order 41 r. 22 C. P. C. was served upon the appellant requiring him to show cause why the execution of the decree should not be directed against him. Amarsingh appeard in the execution court through one Sri Niranjan Dutt, Advocate and filed objections on 17th February, 1954. The only objection raised on his behalf was that the application for execution was time-barred. The objection of the appellant was, however], dismissed in default on 10th of July, 1954 and subsequently, on 12th of September, 1954, the execution application itself was dismissed on account of default on the part of the decree-holder to deposit postal expenses.

3. A second execution petition was filed by the decree-holder on 4th of April, 1955. In this execution case, the appellant raised an objection that as he was not the legal representative of the deceased judgment-debtor, the execution should not he directed against him. The objection was opposed by the decree-holder, amongst others, on the ground that the appellant was debarred from raising this objection on the principle of constructive res judicata;. The execution court dismissed the objections holding that the appellant was so debarred from raising the objection. Hence this appeal by Amar Singh.

4. It is now well settled that the principle of res judicata as embodied in sec. 11 C.P.C. arid the subsidiary principle of constructive res judicata are applicable to execution proceedings; vide Mohanlal Goenka vs. Benoy Kishna Mukherjee (1), and this is not disputed by the learned advocate of the appellant. His contention, however, is that in the earlier execution case, the specific objection that he was not the legal representative of the deceased judgment-debtor was not taken and adjudicated upon and as the execution petition was eventually dismissed without fructifying, the principle of constructive res judicata could not be applied to his case and he was not debarred from raising the objection in the second execution case.

5. On the question raised on behalf of the appellant, the trend of judicial decisions is not harmonious and there is a sharp conflict of opinion. The leading case in support of the contention of the appellant is Gendalal vs. Hazarilal (2). In that case. Chief Justice Sulaiman, after referring to the application of the principle of res judicata to findings in favour of the defendants in suits which were eventually dismissed and basing his conclusions on that analogy and referring to the language of sub-rules (1) and (2) of O. 21 r. 23 C.P.C., laid down the following propositions : —

(1) Where there has been an express adjudication by the Court in the presence of parties then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the

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