Decided on January 03,1955



- (1.) The second defendant appeals against the decree of the lower appellate court which found that his objection to delivery based on Act VIII of 1950 cannot be heard on account of the operation of the rule of res judicata. The decree was dated 11.5.1951. Execution was applied for on 8.11.1951. The second defendant filed written objection on 24.11.1951. That objection was dismissed for default on 22.12.1951. There was, however, no order for execution passed upon the execution petition which was ultimately stayed and struck off on 21.1.1952. It is the order dismissing the objection petition for default which, according to the lower appellate court, operates as res judicata. It is impossible to accept that view. In the first place, the rule of res judicata embodied in S.11 does not in terms apply to orders in execution. It has, however, been held that orders passed settling matters in dispute in execution prevent subsequent raising of same questions afresh on the principles of res judicata embodied in S.11. It has not been held that a dismissal of an objection petition for default unaccompanied by an order allowing execution to the decree holder will constitute an order on the merits settling a question in controversy so as to bar its consideration at any subsequent stage of the proceedings. The only ground on which the learned Judge in appeal disposed of the matter being thus unavailable his judgment cannot be sustained. It is set aside.
(2.) The second appeal is allowed and the case remanded to the District Judge to consider other questions arising in the case and dispose of the appeal on its merits. The costs of this second appeal will abide the result and will be provided for by the lower appellate court.;

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