JUDGMENT

Sulaiman, C.J. - These are revisions from decrees of a Court of Small Causes in which a question of limitation is involved. They have been referred to this Bench as there has been some apparent conflict on the question as to how far the principle of res judicata or estoppel by judgment applies to execution proceedings. A money decree was passed on 12th March 1928, and more than three years after that date, namely on 29th November 1932, the decree-holders filed an application in Court certifying the receipt of Rs. 50 on 11th November 1930. No notice of this was, of course, sent to the judgment-debtor, and the certificate was noted. On the 15th February 1933, the first application for execution was filed, and it was stated in the application that Rs. 50 had been received on 11th November 1930; and there was a further allegation that the judgment-debtor had given a slip, which was lost. The decree-holder prayed for the issue of a warrant of arrest. On 16th February 1933 the office reported that the application was in time. Accordingly a notice, possibly under Order 21, Rule 22, Civil P.C., was issued, fixing 6th March 1933. On receipt of a report that the judgment-debtor had received the notice but had not signed it, an order was passed on 6th March 1933 to the effect that, inasmuch as notice had been served on the judgment-debtor, and he had not filed any objection, therefore the application be considered to be within limitation and be entered in the register and be put up for orders. This was an entry made on the order sheet which was initialled by the judge but was not contained in any saparate order. Later on a warrant was issued on 9th March 1933, and the judgment-debtor was arrested and produced before the Court on 23rd March 1933. On this date he filed an objection on the ground that he had never made any payment in November 1930 and that therefore the application was barred by time. The Court summarily dismissed the objection on the sole ground that he had not taken it earlier. He was ordered to be sent to the civil prison, and was released after a week, as subsistence money was not deposited by the decree-holder. The judgment-debtor then filed a fresh objection to the same effect, which was ultimately dismissed on 19th August 1933 on the same ground that the plea of limitation was barred by res judicata. The two revisions before us are from the orders dismissing his objections on 23rd March 1933 and 19th August 1933.

2. The principle of res judicata, as laid down in the Code of Civil Procedure, is contained in Section 11, but that section in terms applies to a subsequent suit and does not in terms apply to applications for execution. A matter which has been finally decided between the parties in a previous suit is, subject to the conditions mentioned in the section, res judicata between the parties and cannot be re-agitated in a second suit. The explanation added to Section 11 further lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit, and therefore decided against the defendant. Now, where the former suit, even after certain findings are recorded, is actually dismissed, and therefore the dismissal of such suit is not based on those findings against the defendant but is in spite of them, there would be no res judicata. Again, while the suit is pending and the Court is still seized of the case, although it may be that a defendant may not be allowed to reopen a finding which has been recorded on a particular issue, there is nothing to preclude the Court itself from changing its mind and coming to a contrary conclusion, particularly if a new ruling, containing a fresh interpretation of some provision of law, comes into existence in the meantime. It is not Section 11, but the principle of estoppel by judgment underlying that section which has been applied to proceedings