The principle of constructive res judicata applies to execution proceedings and that the principle of res judicata is much wider than the principle enunciated in Section 11, C. P. C.

G. K. MISRA, J.

( 1 ) JUDGMENT-DEBTORS are the appellants. In T. M. Section 181 of 1949 in the Court of the Munsif, Berhampur, final mortgage decree was passed on 28-8-1954. The decree was transferred in favour of one Kalu Podhan by an assignment in writing. The transferee-decree-holder exe-cuted the decree in E. P. 89 of 1955. On his death his legal representatives were substituted. Some of the transferor decree- holders filed an objection in that execution proceeding against the genuineness and the validity of the transfer. Payment of consideration under the deed of transfer was challenged. It was also asserted that the original decree-holders were konds (aboriginals --hill tribes) and that deceased Kalu Podhan, who was looking after T. M. S. 181/1949, might have utilised some blank papers containing their signatures and thumb marks for the creation of the deed of transfer without their knowledge and consent. Despite this objection, the transferee-decree-holders allowed the execution proceeding to be dismissed for default on 17-8-1956 when the Executing Court passed the following order : "the lawyer for the D. Hr. IC files memo of no instructions. The decree holder's lawyer files Hajira. The E. P. is dismissed for default. " clearly the transferee-decree-holders were absent and did not pursue the matter while the lawyer for the transferor-decree-holders was present in Court. The original decree-holders filed E. P. 98 of 1958 which was dismissed as not pressed on 30-10-1958. A reference to this proceeding has been made incidentally as it has no bearing on the question in issue. The transferee-decree-holders again levied E. P. 14 of 1959 on 17-1-1959. Some of the original decree-holders and the judgment-debtors filed separate objections on identical grounds. The essence of the objections was that the deed of transfer was not genuine. Its execution and passing of consideration thereunder were disputed. A further plea was taken that E. P. 14/1959 was barred by the principle of constructive res judicata as the transferee-decree-holders failed to prove the transfer in E. P. 89 of 1955. The learned Munsif passed the following order on 2011-1959, the date fixed for hearing :

"hazira filed by the original decree-holders; Advocate for the judgment-debtors and pleader for the original decree-holders are present and ready for enquiry. No steps taken by the decree-holders (transferees ). None appears. In view of the objections taken by the contesting parties, the truth and the validity of the transfer of the decree is not established by the alleged transferee who has filed this execution petition. It is therefore dismissed as not maintainable by him. "

From the aforesaid order it is manifest that the transferee-decree-holders were asked by the executing Court to establish the factum of transfer. A date was fixed for hearing and when the transferee-decree-holders failed to appear, though the transferor-decree-holders and the judgment-debtors were ready, the executing court dismissed the execution proceedings as not being maintainable at the instance of the transferee-decree-holders. The transferee-decree-holders have levied the present E. P. 329 of 1959 on 11-12-1959. The transferor-decree-holders and the judgment-debtors advanced the objection that the application made in E. P. 89/55 and E. P. 14/1959 were not in accordance with law under Article 182 (5), Limitation Act, and, as such, would not save limitation, and the present execution proceeding is not maintainable being barred by the principle of constructive res judicata. The Courts below concurrently found that the transfer was genuine. The executing Court dismissed the application holding that the previous executions were not in accordance with law and the present execution proceeding is barred by limitation. The learned lower appellate court, however, held that the previous applications in execution were in accordance with law and would save limitation. It accordingly allowed the