Judgment :- 1. These two second appeals arise in execution; and they raise the same question of law, the question being how far and in what circumstances constructive res judicata is applicable in execution proceedings. The judgment-debtors are the appellants in both the second appeals and they dispute the correctness of the decisions of the lower appellate Courts holding that they are debarred from raising the question that the decrees are barred by limitation by virtue of constructive res judicata. In both the cases the primary courts took the view that the decrees were barred by limitation and the lower appellate Courts having taken the contrary view, the judgment-debtors have come up in second appeal. Since both the cases involve the same question of law, the second appeals have been heard together and are being disposed of by this common judgment. 2. The facts necessary for the disposal of these cases are not in dispute, at any rate before me, and they are hereinafter shortly narrated. The decree, which is the subject matter of S.A. No. 138 of 1957, was passed on 5th Karkatakom 1109. An execution petition was filed on 29th Edavom 1112, which was dismissed on 15th Karkatakom of the same year. A second execution petition was filed on 13th Thulam 1114, which was also dismissed on 20th Dhanu 1114. About five years thereafter, another execution petition was filed on 4th Kanni 1119 which again was dismissed on 24th Vrischigorn 1120. Finally, the execution petition, out of which the second appeal has arisen, was filed on 2nd Karkatakom 1121, wherein objection was taken by the judgment-debtors that the previous execution petition, which was filed in 1119, was barred by limitation and consequently the present execution petition was incompetent. The first court agreed with this contention and dismissed the execution petition; but on appeal the lower appellate Court reversed the said decision and the second appeal by the judgment-debtors has followed. 3. In the next case, i.e., S.A. No. 896 of 1957, the decree sought to be executed is dated 27th Vrischigom 1121 and the execution petition, which has given rise to the second appeal, was filed on 3rd November, 1955, that is, admittedly beyond the period of limitation. Notice under 0.21 R.22 was issued to the judgment-debtors, which was accepted by them. Notice under 0.21 R.22 was issued to the judgment-debtors, which was accepted by them. But they did not appear and raise their objection on the date fixed for their appearance and consequently the executing court ordered further steps to be taken in the execution petition. Notice under R.66 was then issued for settling the sale proclamation, on receipt of which the judgment-debtors raised the plea of limitation. The first court accepted the plea, but the lower appellate Court rejected the same, holding that the judgment-debtors were precluded from raising that plea because of constructive res judicata. It is this decision of the lower appellate Court that is being challenged in second appeal in the second case. 4. The first question that has to be considered is how far the principle of constructive res judicata is applicable in execution proceedings. S.11 of the Code of Civil Procedure does not in terms apply to proceedings in execution; but now it is beyond controversy that the principle underlying this section is applicable to execution proceedings as well. That the principle of constructive res judicata is applicable to proceedings in execution is open to no doubt; for the Supreme Court has said so in Mohanlal Goenka v. Benoy Krishna Mukerjee (AIR. 1953 SC. 65). It is also well beyond controversy that the principle of constructive res judicata should be applied to execution proceedings with considerable care and caution. (Vide Azhagappa Chetti v. S.A. Ramanathan Chettiar, AIR. 1933 Mad. 466 and Subramania Ayyar v. Rajeswara Dorai alias Muthuramalinga Sethupathi, ILR. 40 Mad. 1016). A Division Bench Ruling of this Court in Parameswaran Nair v. Ayyappan Pillai (1958 KLT.1021), has laid down that the extension of the principle of constructive res judicata to matters in execution, particularly when it rests upon Explanation IV to S.11 of the Code, that is, when it relates to matters which might and ought to have been urged so that they might be deemed to have been matters directly and substantially in issue, must be cautiously done. The decision has also laid down that only the precise question put in issue and solemnly judged should be deemed to have been finally decided and every interlocutory order in furtherance of the execution should not be considered to be a conscious adjudication of the question. 5. The decision has also laid down that only the precise question put in issue and solemnly judged should be deemed to have been finally decided and every interlocutory order in furtherance of the execution should not be considered to be a conscious adjudication of the question. 5. In the cases before me the question is not so much regarding the applicability of constructive res judicata but the controversy relates to the scope or the ambit of its application. To be more precise: whether, in a case where notice under 0.21 R.22 has been served by affixture and the court has not recorded a formal declaration of the sufficiency of service but directed execution to proceed and the execution petition was finally dismissed, the judgment-debtor can raise the question of limitation in a subsequent execution petition; similarly, whether, in a case where the notice under 0.21 R.22 was accepted by the judgment-debtor and no objection having been raised the execution proceeded, he can raise the question of limitation at a subsequent stage of the same execution petition. These are the two specific questions that arise for consideration in these second appeals. 6. I may straightway observe that there is a Division Bench decision of the Travancore-Cochin High Court dated 21st June 1956, in Kuruvilla Kuruvilla v. Ouseph Joseph (1956 KLT. 541), wherein Koshi, C.J. observed that the balance of judicial opinion was in favour of the view that when a prior order was passed in the same execution proceeding, that would estop the party affected by it from challenging its correctness at a subsequent stage and if the service of notice under 0.21 R.22 was valid, whether by affixture or the notice having been refused, the result would be the same. In this case the learned Chief justice did not consider the several decisions but only indicated his view after cataloguing the more important of the decisions. Strictly speaking, this decision, though of a Division Bench, is not binding on me, as it is not a decision of the Kerala High Court. In this case the learned Chief justice did not consider the several decisions but only indicated his view after cataloguing the more important of the decisions. Strictly speaking, this decision, though of a Division Bench, is not binding on me, as it is not a decision of the Kerala High Court. Moreover, this observation of Koshi, C.J. makes the principle of res judicata wider in scope in its application to execution proceedings than in its application to suits; for, there is nothing in law to prevent the Court from entertaining a plea of limitation at any time during the pendency of a suit in which ex-parte proceedings are taken against the defendant. 7. The one decision on which considerable reliance has been placed by Mr. S. Neelakanta Iyer, the appellants' learned Advocate in one of the second appeals, is a Full Bench decision of the Allahabad High Court in Genda Lal v. Mazari Lal (AIR. 1936 All. 21). Therein Sulaiman, C.J. observed that the principle of res judicata or estoppel by judgment must be applied to execution proceedings within the limits prescribed for that principle when applied to suits and should not be given an unlimited or an extended application. Niamathullah, J., another learned judge who constituted the Full Bench, held that there was nothing in law to prevent the Court from entertaining the judgment-debtors' plea of limitation at any time during the pendency of the application for execution just as in a pending suit, in which exparte proceedings are taken against the defendant. It only stands to reason that the principle underlying S.11 of the Code and the principle of constructive res judicata cannot have a wider field of operation when applied to execution proceedings than in their application to suits, so as to make an exparte order against the judgment-debtor at an earlier stage of the execution petition res judicata against him at a later stage of the same execution petition, which is not the position in law in the case of suits. 8. The discussion in the Allahabad Full Bench case brings into relief some of the important aspects of the matter regarding the application of constructive res judicata to execution proceedings. When an execution petition is presented, it is the duty of the Court to see whether the application is barred by limitation ex facie. 8. The discussion in the Allahabad Full Bench case brings into relief some of the important aspects of the matter regarding the application of constructive res judicata to execution proceedings. When an execution petition is presented, it is the duty of the Court to see whether the application is barred by limitation ex facie. The Court has to satisfy itself and make up its mind whether the execution is within time or not and if the court is of opinion that it is barred by time, it should dismiss the application summarily without issuing notice to the judgment-debtor. The notice under R.22 is not necessarily for calling upon the judgment-debtor to satisfy the court that the application is not barred by time, so that the mere service of notice under 0.21 R.22 does not necessarily intimate the judgment-debtor that he is called upon to answer a question of limitation. In this connection I may observe that the statement of the learned District Judge in his judgment that is being questioned in S. A. No. 896 of 1957 to the effect that the notice under 0.21 R.22 was issued to the judgment-debtors calling upon them to state whether there was any limitation for executing the decree is not justified or supported by the records in the case. Resuming the discussion, the scope of constructive res judicata can relate only to a matter which might and ought to have been made a ground of defence or attack in the former execution petition, of which the judgment-debtor had also notice, and which was not so made a ground of defence or attack. The result is that if merely a notice under 0.21 R.22 was issued and it was served either by affixture or personally and no objection was taken regarding limitation, that does not act as constructive res judicata for raising the plea of limitation at a subsequent stage, unless it is shown that the judgment-debtor had specific notice regarding limitation. For one thing, if the plea of limitation is raised at a subsequent stage in the same execution petition, I fail to understand why it should not be allowed to be raised, if such a plea of limitation can be raised in a suit before the suit was actually disposed of. For one thing, if the plea of limitation is raised at a subsequent stage in the same execution petition, I fail to understand why it should not be allowed to be raised, if such a plea of limitation can be raised in a suit before the suit was actually disposed of. The position will not be substantially different even if such plea of limitation is raised in a subsequent execution petition, if the former execution petition itself did not fructify and was dismissed either on merits or for default. May be that the position is different, if the former execution petition fructified at least partially and some relief was granted to the decree-holder. But in a case where the former execution petition ended in dismissal, the position cannot be different from a case where the plea of limitation has been raised in the same execution proceeding at a subsequent stage. The question really is that, when the Court itself has the responsibility to satisfy itself as to whether the execution petition is barred by limitation before it issues notice to the judgment-debtor and if it does not so satisfy itself, nor does it give the judgment-debtor sufficient indication in the notice that he has to meet the plea of the decree-holder that the decree is not barred by limitation, it cannot be said that the question of limitation is a matter which might and ought to have been made a ground of defence or attack in the execution proceeding. If so, there cannot be any implied decision on the question of limitation in that proceeding. 9. Coming to the cases in hand: In S.A. No. 138 of 1957 the appellant was served by affixture and thereafter he not having appeared, further steps, in execution were directed by the Court. No further steps were taken with the result that the execution petition itself was dismissed. Therefore, unless there is indication that the notice under 0.21 R.22 contained a reference or an invitation to the judgment-debtor to show cause how the decree was not barred by limitation, it cannot be held that there was an implied adjudication that the decree was alive. Moreover, since the execution petition itself did not fructify and was dismissed for default, no decision actual or implied on the question of limitation could be said to have subsisted after the dismissal. Moreover, since the execution petition itself did not fructify and was dismissed for default, no decision actual or implied on the question of limitation could be said to have subsisted after the dismissal. Consequently, the plea of limitation could be validly taken by the judgment-debtor in the subsequent execution petition. The position in S.A. No. 896 of 1957 is stronger for the judgment-debtor; because, in this case the plea of limitation was taken in the course of the same execution petition, though at a later stage. In this case also by the mere acceptance of a notice under 0.21 R.22, which is not proved to have contained any specific reference that the decree was alive at that time, it cannot be said that there was an implied adjudication of the question of limitation. Therefore, in this case also the plea of limitation is available to the judgment-debtors-appellants. 10. In this view I set aside the orders of the lower appellate Courts in both the cases and allow the second appeals. In the circumstances, I direct both parties in both the cases to suffer their respective costs throughout. Leave to appeal is granted in both the cases. Allowed.