The principle of constructive res judicata applies to execution proceedings. A foreign judgment is not executable in India if it is not a judgment on merits. Under Sec. 44-A, Civil Procedure Code, a decree-holder can directly file an execution petition in the Executing Court without following the procedure laid down in Sections 38, 39 and 40, Civil Procedure Code.

1. This is a revision petition by the judgment-debtor against two orders, both dated March 15, 1999, passed by the Civil Judge (Junior Division), Ludhiana, whereby judgment-debtors applications challenging the execution proceeding have been dismissed.

2. The plaintiff/decree-holder is a Company incorporated and registered in England. It is engaged in the business of selling wool. The defendant Company is engaged in the business of buying wool and manufacturing woolen knitwears at Ludhiana in India. The plaintiff and the defendant entered into an agreement on August 21, 1996 and the plaintiff agreed to sell to the defendant 45 bales of wool described as greasy fleece wool of good colour. The goods were shipped to Bombay on C.I.F.terms on September 14, 1996. Invoice dated September 17, 1996 for U.S.$ 44,206.50 was received by the defendant Company at Ludhiana. Full contract price was to be paid by the buyer by December 16, 1996. The buyer Company of Ludhiana did not make the payment on the ground that the U.K.Company had supplied the goods of much inferior quality. The wool supplied was suitable for only carpet industries and not for manufacturing high class knitwears. However, delivery of goods was taken by the buyer Company on an assurance from the U.K.Company that the material was the same as ordered. It is alleged by the buyer Company that the U.K.Company played fraud with it by supplying goods of inferior quality. A legal notice dated October 18, 1997 was sent by the U.K.Company to the Ludhiana Company. A claim for the recovery of price with interest was filed by the U.K.Company before the Central London County Court (for short, the London Court). It was decreed on April 20, 1998. The U.K.Company filed an execution application in the Court of Civil Judge at Ludhiana.

3. The judgment-debtor, i.e. the Ludhiana Company, raised the objection that the execution application could not be directly filed by the U.K.Company in the Court of Civil Judge at Ludhiana and that the Civil Judge at Ludhiana was not competent to entertain the execution application. It was also stated in the objection petition by the judgment-debtor that the execution application had been filed without following the procedure laid down in Sections 38, 39 and 40 of the Code of Civil Procedure.

4. A second objection petition was also filed by the judgment-debtor raising an objection that the decree of the London Court was not executable in view of Sec. 13 (b), Civil Procedure Code, as the decree was not passed on merits of the case. It was alleged that the foreign judgment sought to be executed at Ludhiana had not been given by the London Court on the merits of the case. Since the judgment was not conclusive as to the matter between the parties, it could not be executed.

5. The Executing Court at Ludhiana, namely, the Civil Judge (Junior division), has dismissed both the applications filed by the judgment-debtor by two different orders, both passed on March 15, 1999. The present revision petition has been filed challenging both the orders. Learned counsel for the judgment-debtor has not explained as to how one revision petition was maintainable for challenging the two different orders. It would not matter that both the orders have been passed by the Executing Court on the same day. Two orders have been passed on two different applications filed by the judgment-debtor. Be that as it may, the matter may also be examined on merits. First objection petition dated October 25, 1998 filed by the judgment-debtor raised only one objection that the execution application had been wrongly filed by the decree-holder, namely, the U.K.Company, without following the procedure of Sections 38, 39 and 40, Civil Procedure Code, and that the execution application could not be filed directly in the Executing Court. The second application was subsequently filed raising the question under Sections 13 and 44-A of the Code of Civil Procedure. It was stated that the judgment of th