Judgment :- 1. The decree-holder had filed this appeal against the order of the lower court dismissing his petition to take out execution on the lines prayed for in the execution petition of 3.8.1117. The decree in the case was passed on 24.11.1100 and so a subsequent application filed after the expiry of 12 years from the date of the decree would be prima facie barred under S.41 C.P.C. But in the application it was specifically stated by the decree-holder that the claimed exemption from operation of the said Section by virtue of sub-s. 2 of that section which provided that the 12 years' rule shall not apply where the judgment-debtor had by fraud or force prevented the execution of the decree at sometime within 12 years immediately before the date of the application. The execution court at first without considering the question raised by the appellant, had rejected the application on the ground that it was precluded from considering the question on account of a prior order of the High Court said to have been passed on a similar application presented on an earlier date. The decree-holder appealed against this order in A.S. 708 of 1117. The judgment in that appeal will have to be considered in detail at a later stage. It is sufficient now to mention that this Court set aside the order of the Munsiff and remanded the case to the execution court for a consideration of the allegation of fraud made by the decree-holder and the plea of constructive res judicata advanced by the judgment-debtor. After remand the Court below held that the prayers in the execution petition of 3.8.1117 were bared by constructive res judicata because of a prior decision of the High Court reported in Karunakara Panicker v. Kochunny (57 T.L.R. 877-F.B.). As regards fraud pleaded by the decree-holder the lower Court had found that sub-clause 2 of S.41 was applicable as the judgment-debtor had in 1106 escaped from lawful custody after he had been arrested on 11.7.1106. The petition was however dismissed because of the finding relating to res judicata. The judgment-debtor had filed an objection to the finding relating to fraud. 2. There was an execution petition of 1111 filed within 12 years and in execution certain properties of the judgment-debtor were attached. The petition was however dismissed because of the finding relating to res judicata. The judgment-debtor had filed an objection to the finding relating to fraud. 2. There was an execution petition of 1111 filed within 12 years and in execution certain properties of the judgment-debtor were attached. A claim had been preferred against the attachment and that was allowed as regards most of the properties attached. After this, the decree-holder on 2.6.1113 filed an execution application asking for attachment of more properties. This petition bears the date 27.5.1113; but it was put into court only on 2.6.1113. This was however dismissed on 12.6.1113 for non-prosecution. On 20.7.1113 the decree holder put in a petition praying for attachment being issued forthwith of the properties mentioned in the schedule filed along with the execution petition of 2.6.1113. At that time the execution petition of 1111 was pending and so the learned Munsiff held that this petition of Kumbhom 1113 could be considered to be one to amend the earlier execution petition filed within time and that therefore attachment could be issued. Against this the judgment-debtor field an appeal before this Court and the judgment in that case was Karunakara Panicker v. Kochunny (57 T.L.R. 877-F.B.). This Court then held that pursuant to the application of 20.7.1113, the execution petition of 1111 could not be amended as amendments were made only to cure the defects in the execution petitions filed. It was pointed out that the execution petition of 1111 was in order without any defects so that there was no occasion to amend that application. The order of the Munsiff was therefore set aside and the petition of 1113 dismissed. The force of this judgment in relation to the execution petition of 3.8.1117 filed by the decree-holder had been considered in A.S. 708 of 1117. In paragraph 2 of the judgment it was mentioned thus: "The question that arose for consideration in that case was whether an application presented on 20.7.1113 for the attachment and sale of these properties was within time. In paragraph 2 of the judgment it was mentioned thus: "The question that arose for consideration in that case was whether an application presented on 20.7.1113 for the attachment and sale of these properties was within time. In respect of that application, it was contended that, though it was 12 years after the date of the decree, it was in revival of an earlier application dated 28.10.1111, but that contention was repelled on the ground that the application of 20.7.1113 was a fresh application presented after the period of 12 years and that it could not be treated as in revival of the earlier application of 28.10.1111 which was found to have been properly dismissed for the default of the appellant." 3. The decision in A.S. 708 of 1117 according to Their Lordships who decided the case was that if the 12 years' rule were applicable the application of 1114 was out of time. The Judge who wrote the leading judgment in 57 T.L.R. 877 was a party to the judgment in A.S. 708 of 1117. It was further mentioned there that the question whether the decree-holder was entitled to the extended period of limitation provided by sub-s. 2 of S.41 C.P.C. was not considered by this Court for the reason clearly stated in that judgment and that accordingly the said decision was confined to the ground specifically raised and dealt with in the court below. Then it was pointed out that the question raised in the execution petition of 1117 was an identical one which this Court refused to consider in the case above referred to as it was not properly before it. Their Lordships then mentioned that they were not referred to any rule of law which precluded them from considering the question raised in this case when it was properly agitated. So it was their view that the decision in 57 T.L.R. 877 could not be a bar to the execution court considering the question whether the judgment-debtor had by fraud or force prevented the execution of the decree within 12 years of the execution application of 1117. 4. The bar on the basis of res judicata had been considered in paragraph 3 of the judgment in A.S. 708 of 1117. "It was contended that the present application was barred by the rule of res judicata. 4. The bar on the basis of res judicata had been considered in paragraph 3 of the judgment in A.S. 708 of 1117. "It was contended that the present application was barred by the rule of res judicata. We do not think that there is any substance in the contention. The question raised in the prior case was whether the application before the court was in continuation of a prior application, but the question is entirely different here. In the present case, the question is whether a separate application which purports to stand on its own merits is maintainable on the strength of the provision contained in sub-s. (2) of S.41 of the Code of Civil Procedure. The question whether a subsequent application is in revival of a prior application is entirely different from the question whether a fresh application is within time where it falls under sub-s. (2) of S.41". 5. Evidently therefore the plea of constructive res judicata had also been answered in the judgment in A.S. 708 of 1117. This plea was raised because of Explanation 4 to S.10 C.P.C. It was contended that the decree-holder might and ought to have taken exemption under S.41(2) C.P.C. in regard to his execution petition of 1113. Since it had been decided in A.S. 708 of 1117 that the scope of the application of 1113 was entirely different from that of 1117 the decree-holder was not obliged to put forward all his contentions in support of the application of 1117 while prosecuting that of 1113. There could therefore be no duty cast on him to claim this exemption under S.41(2) C.P.C. Incidentally it might also be referred to here, that the ruling in 57 T.L.R. 877 proceeded on the assumption that the application of 20.7.1113 was a subsequent execution application. It was not so. It was a simple petition with a prayer to issue attachment of certain properties described in the schedule filed with the application of 2.6.1113 which had been dismissed for the default of the appellant. It is not for us however to consider the correctness of the dictum laid down in 57 T.L.R. 877 or to the facts mentioned therein. To the extent it goes it is binding on the parties, but we are not to go beyond that ruling to fix the parties with something which they are not bound to observe. It is not for us however to consider the correctness of the dictum laid down in 57 T.L.R. 877 or to the facts mentioned therein. To the extent it goes it is binding on the parties, but we are not to go beyond that ruling to fix the parties with something which they are not bound to observe. Like the ruling in 57 T.L.R. 877 the decision in A.S. 708 of 1117 is equally binding on the parties to the case. A.S. 708 of 1117 had laid down that the scope of the application of 1113 and that of 1117 are entirely different. There would therefore be no constructive res judicata based on Explanation 4 to S.10 C.P.C. It is therefore unnecessary for us to consider the several rulings cited by the learned advocates on both sides before us regarding the applicability of Explanation 4 to S.10 of the proceedings in execution. We are therefore of the view that the execution petition of 1117 is not barred by constructive res judicata by virtue of the decision reported in 57 T.L.R. 877. 6. The next question is whether the execution of the decree was prevented by the judgment debtor by fraud or force. The execution diary shows that on two occasions on 12.7.1106 and 6.8.1107 the judgment-debtor was arrested in execution and escaped from lawful custody. This amounted to fraud within the meaning of sub-s. 2 of S.41. The court below had entered a finding in favour of the decree-holder on this question and though the judgment-debtor had objected to that finding he was not able to substantiate her contentions. We would therefore confirm the finding of the court below that in 1106 and 1107 the decree-holder was prevented by fraud and force of the judgment-debtor in executing the decree. These days are within 12 years of the execution petition of 1117 so that applying Cl. 2 of S.41 C.P.C. we hold that the execution is not barred by limitation under the 12 years' rule. We set aside the order of the lower court and direct it to restore the execution application of 1117 to file and dispose it according to law and in the light of the findings recorded above. The appellant will get the costs of this appeal. Appeal Allowed.