The principle of constructive res judicata is applicable to execution proceedings and that Explanation IV to Section 11 of the Code of Civil Procedure, 1908 has to be given its due weight and significance.

Judgement

PATRA, J. :- This is an appeal against an order of the First Additional Subordinate Judge, Cuttack setting aside an order of the Munsif, Jaipur dismissing an application under S.47 of the C.P.C. (hereinafter referred to as the Code) filed by the judgment-debtors. The facts of the case may be set down in chronological order as follows:

4-5-1950 - Suit filed by the appellants for possession was dismissed by the Munsif.

11-12-1951 - Appellate Court set aside the judgment of the trial Court and decreed the suit with costs.

10-4-1954 - First Execution Case No.158 of 1954 filed by the decree holder for recovery of possession and costs.

27-11-1956 - Second Appeal filed by the judgment-debtor respondents dismissed by the High Court.

28-2-1958 - Second Execution Case No.72 of 1958 filed.

5-4-1958 - Execution Case (No.72/58) dismissed.

25-12-1960 - Judgment debtor No.7 on his behalf and on behalf of all judgment debtors is alleged to have paid Rs.5/- to the decree- holder towards the decree.

14-8-1962 - Third Execution Case No.195 of 1962 filed

27-9-1962 - Execution Case (No.195/62) dismissed.

18-12-1962 - The present Execution Case No.339 of 1962 filed by the decree holder. The Court directed the same to be put up on 2-1-63 with office note.

2-1-1963 - Authentication fee paid by the decree-holder, Case admitted. Notice under Order 21, Rule 22, C.P.C issued fixing 24-1-63 for return.

24-1-1963 - Service return received. Service proved and accented as sufficient. Ordered to be put up on 1-2-1963 when decree-holder to take further steps.

1-2-1963 - Process-fee filed. Judgment-debtor No.1 appeared and prayed for time to file objections - let him file his objections by 9-2-1963.

9-2-1963 - Judgment debtor No.1 filed objections under Section 47, C.P.C. challenging the maintainability of the execution petition on the ground of limitation. Objection numbered as Misc. Case No.50 of 1963.

16-11-1963 - Misc. Case No.50 of 1963 dismissed for default. Petition for restoration filed the same day.

23-11-1963 - Misc. Case No.50/63 restored. The decree-holder let in evidence in support of his contention that Rs.5/- had been paid by the Judgment-debtors to him towards the decree. The allegation was denied by the judgment-debtors.

1-5-1964 - The learned Munsif dismissed the miscellaneous case on the findings -

(1) that the judgment-debtor No.1 not having filed any Objection on 24-1-1963 which was the date fixed for his appearance, the order passed by the Court on that day that the decree holder should take further steps amounted by implication to an adjudi- cation that the execution application is within time and is maintainable and that on the principle of constructive res judicata, the judgment-debtors are not entitled to object to the execution at a later stage of the same execution proceedings:

(2) that the payment of Rs.5/- alleged to have been made on 25-12-1960 is true and it saves limitation.

26-10-1965 - On appeal, the learned Subordinate Judge set aside both the findings. He held that the alleged payment of Rs.5/- is not true, and that the principle of constructive res judicata is wholly inapplicable to the facts of the present case. He, therefore, held that the execution proceeding is barred by time and is not maintainable.

It is against this order that the decree-holder has filed the present appeal.

2. This appeal, in the first instance came up for hearing before the Hon'ble Chief Justice who directed that this be heard by a Full Bench. Obviously, in view of certain conflicting decisions to which reference will presently be made.

3. The questions that arise for consideration in this appeal are the following:-

(1) What is the exact import of the order dated 24-1-1963 passed by the executing Court and whether it amounts to an implied adjudication that the decree is executable and the execution application is not barred by limitation.

(2) Assuming that it is so, whether it is open t