JUDGMENT Referring Order of M. Lal, J. - This Execution First appeal filed by the judgment-debtors arises out of an order passed by the Civil Judge Mohanlalganj, Lucknow, dismissing the objection of the appellants summarily. Opposite party No. 1 decree-holder filed a suit for partition against Kandhai Lal, father of the present appellants, in which the appellants and other respondents were also parties. In that suit a decree for costs was passed against the father of the present appellants alone. That decree was put into execution and certain properties were attached. The present appellants at first filed an objection under Order or, rule 58, C.P.C., on or about the both of October, 1953 stating that the properties belonged to them and were not attachable. This objection was dismissed by the Civil Judge summarily on the and January, 1954 with the observation that it had been unnecessarily delayed as the attachment had been made on or about the 8th September, 1953. Soon after the dismissal of this objection another objection purporting to be under section 47, C.P.C. was filed on the 2nd January 1954. This objection has now been dismissed by the learned Civil judge on the ground that the former order passed on the and January, 1954 on the earlier objection operated as res-judicata. It is against this order that the present appeal has been filed. I have heard the learned counsel for the appellants at some length and also the learned counsel for the respondents. The facts given above will go to show that the first objection filed by the judgment-debtors purported to be under Order 25, rule 58, C.P.C. Since the present appellants were also parties to the former suit,they should have filed an objection under section 47, C.P.C. instead of filing an objection under Order 25, rule 58, C.P.C. Even if the objection was headed as one under Order as, rule 58, C.P.C. the court should have treated this objection as one under section 47, C.P.C. and should not have dismissed it summarily on account of delay. The authority of Lachhoo v. (Finn) Babu Lal, A.I.R. 5935 Allahabad 183 may be cited in support of the view that persons who are parties to a suit and who file an objection against attachment have to file that objection under section 47 and not under Order as, rule 58, C.P.C. However, both the judgment-debtors and the Civil Judge treated the objection to be one under Order 21, rule 58. The Civil Judge passed an order dismissing the objection summarily on the ground of undue delay as contemplated by the proviso to Order as, rule 58(x), C.P.C. The judgment-debtors objectors did not go in appeal against the order. It is also doubtful whether the objectors had any right of appeal against such an order as had been passed by the Civil Judge and whether an appeal, if filed, would have been entertained. The fact however, remains that no appeal was filed and the judgment-debtors subsequently filed the present objection under section 47, C.P.C. This objection was thrown out on the ground that the former order of dismissal of the first objection operated as res judicata. The learned counsel for the parties have not been able to cite any authority which may have a direct hearing on the point involved in the case. The appellant's learned counsel has cited the following authorities : Daulat Ram v. Dr. Anant Ram, A.I.R. 1940 Lahore 67, Peoples Bank of Northern India Ltd. v. Syed Ailaz All, (A.I.R. 1942 Oudh 219), Nasir Khan v. Itwari and Others, (A.I.R. 1924 Allahabad 144) and Bindraban Kundan Lall v. Gams Shankar Walaiti Ram and others, (A.I.R. 1951 Pepsu 96). In none of these authorities the point which requires consideration in this case was considered either directly or indirectly. The question is whether under the circumstances of the case the order of summary dismissal of the objection purported to have been filed under Order 15, rule 38, C.P.C. operates as a bar to the entertainment of the subsequent objection filed under section 47, C.P.C. Since the matter is of importance and requires consideration by a larger Bench I direct that the file be laid before the Hon'ble Senior Judge to constitute a larger Bench for the disposal of the case. (On A Difference Between M.C. Desai, C.J. and S.D. Singh, J.) Opinion of S. N. Dwivedi, J. Dwivedi, J. - Learned Judges have, while referring the appeal on account of their differences, not formulated in their referring order the precise questions of law which I am called upon to answer. However, it is evident from their separate opinions that there arise the following main questions :- (1) Whether the first objection of the appellant, which was dismissed by the Civil Judge under the proviso to R. 58, may be treated as still pending? (2) (a) If not, whether the second objection of the appellant, even though it does not embody a prayer for reviving the first objection, may be treated as embodying such a prayer? (b) If so, can the court revive the first objection? (3) Whether the order dismissing the first objection operates as res judicata in bar of the second objection? What is the reality in this case? 1. The Civil Judge has found that the appellants not their father, Kandhai Lal, are the owners of the attached property. Accordingly their property cannot be attached for the decretal amount due by their father. 2. The appellants filed their first objection to the attachment of their property under R. 58 of Or. 21 of the Code of Civil Procedure: then it never struck them that they should object under Sec. 47 of the Code. 3. The Civil Judge summarily dismissed the said objection under the proviso to R. 58: while passing the order, he was deliberately applying R. 38 and not Sec. 47. 2. The respondents seek to support the second order of the Civil Judge dismissing the second objection of the appellants under Sec. 47 as barred by res-judicata by drawing over this bare-faced reality a double blanket of fiction: firstly, the first objection of the appellants, expressly made under R. 58, and the order of the Civil Judge dismissing that objection under the proviso to R. 58 as designedly or unnecessarily delayed - for which reason an objection under Sec. 47 cannot be dismissed - should be deemed to have been made under Sec. 47; secondly, his order should be deemed to have impliedly decided on merits the fictional objection under Sec. 47. They thus seek to engraft a fiction on a fiction. Fiction is a conscious error, a deliberate falsehood. They thus seek to engraft a fiction on a fiction. Fiction is a conscious error, a deliberate falsehood. It can therefore never attain apotheosis, nor can it be used to work injustice. As an illustration, the fiction of corporate personality has never been used to conceal the fraud or illegality committed by the agents of a corporation. Courts may use a legal fiction as a crutch to help the variety reach justice. According to Blackstone "..... these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extent to work an injury, its proper operation being to prevent a mischief remedy an inconvenience that midlife result from the general rule of law. So true it is, that in fictione juris semper subsistit a equitas" (in a fiction of law equity must always subsist) (Blackstone's Commentaries, abridged by George Chase IV Edition, page 637). Stone, J. said: "While fictions are sometimes invented in order to realise the judicial conception of justice, we cannot define the constitutional guarantee in terms of a fiction so unrelated to reality without creating as many tax injustices as we would avoid." Curry v. McCanless, 83 Led. 1339 at p. 1351 see also G.T. Helvering v. Stockholmes Enskilda Bank, 79 Led. 211 at p. 217. 3. As utility is the mother of fiction, it is always essential to bear in mind the end for which it is created The Bengal Immunity Company Limited v. The State of Bihar, (1955) 2 S.C.R. 603 at p. 646. In Nasir Khan v. Itwari, A.I.R. 45 Alld. 669 the first appellate court dismissed the appeal on merit in default of the appellant, who then filed a second appeal in the High Court. The respondents raised a preliminary objection that no appeal lay as the order under appeal ought to be treated in law as an order in default. The Court declined to apply the fiction and held that the right of appeal depended not on what the inferior court ought to have done but on what it actually did. The Court declined to act en a putative state of facts, because it would have worked injustice on the appellant, who had been misled by face of the order in filing an appeal. 4. The Court declined to act en a putative state of facts, because it would have worked injustice on the appellant, who had been misled by face of the order in filing an appeal. 4. In Madho Bibi v. Hazari Mal, I.L.R. 8 Pat. 717 the objection to the attachment was misunderstood by the objector as well as the execution court to be one under R. 58, though in law it fell under Sec. 47, and dismissed after hearing on merits. Then the objector filed a revision under Sec. 115 against the order. The High Court held that, as the objection would be deemed to be one under Sec. 47, no revision but an appeal lay from the order. Following this decision the Rangoon and Lahore High Courts and this Court have taken similar view. Maung Ba v. Maung Tha Yin, A.I.R. 1931 Rangoon 314 Gopal Das v. Ishar Das, AIR 1932 Lahore 376 and Lachhoo v. Munni Lal Babu Lal, 1935 A.L.J.R. 74. In the cases of Madho Bibi, I.L.R. 8 Pat. 717, Maung Ba, A.I.R. 1931 Rangoon 314 and Lachhoo, 1935 A.L.J.R. 74 counsel did not invite the attention of learned Judges to the purposive role of a fiction. In the Lahore case such a reference was not called for, because the vanquished objector, even though his objection was filed and decided under R. 58, preferred an appeal from the order, and the Court applied the fiction to sustain the questioned right of appeal. It may also be noticed that unlike the present case those cases were decided on the merits. The Patna and Allahabad cases themselves follow Jaminibala Debi v. Karoli Prasad Mukherjee, AIR 1921 Calcutta 242 Dulla v. Shib Lal, I.L.R. 39 All. 47 Sheikh Kaloo v. Bhola Nath, AIR 1925 Patna 482 Jhunni Lal v. Matha, AIR 1925 Allahabad 594 Bullayya v. Subbagya, A.I.R. 1933 mad. 130 Basti Ram v. Fattu, I.L.R. 8 All. 146 and Seth Chand Mal v. Durga Dei, I.L.R. 12 All. 313. In Jaminibala Debi's case, AIR 1921 Calcutta 242 an objection was registered and decided under Sec. 47. The Court overruled the objection that, as the objection was really one under R. 58, no appeal lay. In Dulla's, I.L.R. 39 All. 47 case no objection at all was filed, and the auction-sale was challenged in a suit. 313. In Jaminibala Debi's case, AIR 1921 Calcutta 242 an objection was registered and decided under Sec. 47. The Court overruled the objection that, as the objection was really one under R. 58, no appeal lay. In Dulla's, I.L.R. 39 All. 47 case no objection at all was filed, and the auction-sale was challenged in a suit. It was held that, as the claim was in effect an objection under Sec. 47, the suit could not be filed. The cases of Kaloo, AIR 1925 Patna 482 and Jhunni Lal, AIR 1925 Allahabad 594 are similar to Jaminibala Debi's case, AIR 1921 Calcutta 242. In Bullayya's case, A.I.R. 1933 mad. 130 the objection was filed under R. 90 but the report at page 132 indicates that it was treated by the execution court to be one under Sec. 47. In Basti Ram's case, I.L.R. 8 All. 146 an objection was filed under Sec. 244 of the old Code, which corresponded to Sec. 47, and was rejected. Then the objector filed a suit for setting aside the sale in favour of the decree-holder auction-purchaser. It was held that the suit was not maintainable. In Chand Mal's case, I.L.R. 12 All. 313 the legal representative of the judgment-debtor claimed to be the owner of the attached properties. His objection was not headed under any provision. It was partly allowed, and the decree-holder filed an appeal. This Court held that the objection was under Sec. 244 and repelled the contention of the legal representative that a suit, and not the appeal, should have been filed. 5. The striking difference between these cases and the cases of Madho Bibi, I.L.R. 8 Pat. 717 and Lachhoo, 1935 A.L.J.R. 74 is that in the former objections were either filed and decided under Sec. 244 or Sec. 47 or not filed at all, whereas in the latter the objections were filed and decided under R. 58. The objections were deemed to have been made under Sec. 47. That assumption having been made, it was easy to extend the rule laid down in the former cases to the latter cases. 6. The facts of the present case are evidently more distinct from the former cases, as here the objection was not only filed under R. 58, but also dismissed deliberately under the proviso to R. 58 without a hearing on the merits. 6. The facts of the present case are evidently more distinct from the former cases, as here the objection was not only filed under R. 58, but also dismissed deliberately under the proviso to R. 58 without a hearing on the merits. I accordingly feel great hesitation in consciously misconceiving that the objection and the decision were under Sec. 47. 7. A citizen in this country is entitled to resort to a court of justice for relief from injustice and for protection of his rights. I do not conceive that it is his duty to quote the correct section of the law under which he is seeking relief and protection. It is the court's duty to extend him relief and protection according to the law. Courts have long overgrown the ancient rigidity of form and procedure. Accordingly even though the appellants had wrongly asked for relief under R. 58, the Civil Judge should have treated the objection under Sec. 47 and should have decided it on merits. It was rather unfortunate that he also misapprehended the legal nature of the objection and dismissed it summarily under the proviso to R. 58. It would scarcely be just and reasonable to draw a pal of fiction over the court's blunder and the resulting wrong to the appellants. 8. In the special circumstances of this case one may feel prone to take the view that, as the objection was filed and dismissed summarily under R. 58, no appeal lay from the order, and that, as the objection under R. 58 was not maintainable, no suit under R. 63 could be filed. Daulat Ram v. Dr. Anant Ram, A.I.R. 1940 L. 67. 9. It is, however, not necessary to express any concluded opinion on this aspect, as the learned Judges are agreed that the first objection, though described to be under R. 58, should be treated to be under Sec. 47. That objection was summarily dismissed by the Civil Judge under the proviso to R. 58 as unnecessarily delayed. It is not suggested that the order of dismissal is couched in equivocal language so that it may be read as keeping the objection pending. I accordingly find it difficult to treat it as still pending. That objection was summarily dismissed by the Civil Judge under the proviso to R. 58 as unnecessarily delayed. It is not suggested that the order of dismissal is couched in equivocal language so that it may be read as keeping the objection pending. I accordingly find it difficult to treat it as still pending. The order of a court, pronounced openly and intended to regulate the relations of the rival parties before it, should generally be construed objectively with reference to the specific language used in it. Commissioner of Police, Bombay v. Gordhandas Bhanji, 1952 S.C.R. 135 at p. 140. 10. Here a fiction should, to my mind, be applied to rectify the court's mistake and redress the resulting wrong to the appellants. I would therefore agree with S.D. Singh, J. that the second objection of the appellants under Sec. 47 should be deemed to be an application under Sec. 151 for reviving the first objection. Aruna chalam Chettiar v. Govindaswami Gaundan, AIR 1942 Madras 519. Although the second objection does not embody a prayer for reviving the former objection and was not so treated by the Civil Judge, this Court can so treat it in appeal. Akhoy Kumar v. Krishna Chander, AIR 1932 Calcutta 569 , Munshi Ram v. The Sun Life Assurance Co. of Canada, I.L.R. 80 Luck, 268, Dhan Bibi v. Mrinalini Ghosh, AIR 1945 Calcutta 449 and Tejwati Kaur v. Central Bank of India, AIR 1962 Patna 123. In the second case it was said: "It is true that the plaintiff did not say in so many words that his application may be treated as a plaint but there was nothing to debar the Court from treating it as such and doing substantial justice between the parties." 11. The first case is directly to the point. There the first objection under Sec. 47 was dismissed in default, and the second objection under Sec. 47 was dismissed as barred by res-judicata. In appeal the High Court treated the second objection as an application under Sec. 151 and, in the ends of justice, revived the first objection. 12. This approach to the case gets over the hurdle of res judicata. But even otherwise, there should be no such difficulty. In appeal the High Court treated the second objection as an application under Sec. 151 and, in the ends of justice, revived the first objection. 12. This approach to the case gets over the hurdle of res judicata. But even otherwise, there should be no such difficulty. In execution proceedings, the principle of res judicata "is not much wider in scope or mere exhaustive in application than the principle embodied in Sec. 11." Genda Lal v. Hazari La1, I.L.r. 58 All. 313 and the dismissal of the first objection would not ope-rate as res judicata, for it was never heard and decided Shokhee Bewah v. Mehdee Kundul, (1868) 9 W.R. 327, Rungray Ravji v. Sidhi Mahomed Ebrahim, (1882) I.L.R. 6 Bom. 482, Mohammad Salim v. Habian Bibi, (1886) I.L.R. 8 All. 282 Sheikh Saheb v. Mahomed, (1890) I.L.R. 13 Mad. 510 Sheosagar Singh v. Sita Ram Singh, (1897) I.L.R. 24 Cal. 616 (P.C.) Persotam Gir v. Harbada Gir, (1899) I.L.R. 21 All. 505 (P.C.). In Har Sarup v. Anand Sarup, I.L.R. 1942 All. 624 a former suit by the son on his own behalf and on his father's behalf was dismissed on the sole ground that the suit, having been filed more than three years after the son's attaining majority, was barred by time, the Court held that the subsequent suit by the father was not barred by res-judicata. 13. It has been held that where an objection of the judgment-debtor under R. 90 of Or. 21 is dismissed as barred by time, his defence on the ground of the nullity of the auction-sale, in the auction-purchaser's suit for recovery of possession is not barred by res judicata. China Dandsi v. Pedda Tatiah, AIR 1921 Madras 279 and Venkata Narayana v. Pannapati Elias, I.L.R. 1955 Mad. 149. 14. In Dhonkal Singh v. Phakkai Singh, (1893) I.L.R. All. 84 a Full Bench of six Judges held that the order striking off an execution application for failure to give an inventory of the property sought to be attached did not bar a second application for execution. According to this decision, in deciding the question of res judicata the courts should be guided by the effect of the order and not by its mere form. Sir John Edge, C. J. said at page 100: " . . . . According to this decision, in deciding the question of res judicata the courts should be guided by the effect of the order and not by its mere form. Sir John Edge, C. J. said at page 100: " . . . . it follows that in considering the effect of an order passed by a court in a proceeding for the execution of a decree we must he guided by the reason stated for making the order and not by the mere phraseology employed in the formal direction which concludes the order. In other words, we must in such cases ascertain whether an order that an application "be dismissed", "be struck off", "be shelved" or "be sent to the record-room" was based on a judicial adjudication that the applicant's right to have his decree executed at all was gone by reason of limitation or some other ground, which, if it existed, would disentitle him to have execution of the decree, on any application which he might make, or was made on some ground which did not go to the merits and to his right to execute his decree . . . . . ." Sir John Edge went on to say: "When such an order in proceedings for the execution of a decree is based on an adjudication, whether erroneous or not, on the merits, whether the phraseology employed is "be dismissed," "be struck off," or "be shelved," it is, in my opinion, until it is reversed or set aside, a bar to any subsequent application for the same purpose, but when it is not based on an adjudication on the merits, it is not to be considered as a bar." At page 103 Aikman, J. said: "In each case the effect of the court's order by which an application for execution is disposed of has to be considered. The order may have the effect merely of killing the particular application without any adjudication on the merits; on the other hand, the effect of the order may be to render the decree dead and incapable of execution. In the former case there is nothing to prevent the decree-holder putting in a fresh application . . . .; in the latter case, the order, if allowed to become final, puts an end to the decree-holder's rights under the decree." 15. In the former case there is nothing to prevent the decree-holder putting in a fresh application . . . .; in the latter case, the order, if allowed to become final, puts an end to the decree-holder's rights under the decree." 15. Applying these dicta I would hold that the first order does not bar the second objection. Daulat Ram v. Dr. Anant Rama, A.I.R. 1940 L. 67 is a direct authority on the point. In that case the first objection of the judgment-debtor under R. 58 was dismissed summarily on the ground that it appeared to be collusive. His second objection under Sec. 47 was dismissed as barred by res-judicata. In second appeal Bhide, J. held that, as the first objection was dismissed without going into merits, the order would not bar the second objection under Sec. 47. He took the view that the first objection should be held to have been dismissed merely as being incompetent. 16. The decision in Ajai Varma v. Ram Bharosey Lal, 1951 A.L.J.R. 490. would not help the respondents, as in that case the Privy Council had decided the former suit on the merits although it also said that it left open one issue. To sum up, my answers to the three questions are: Question (1) - No Question (2) (a) and (b) - Yes Question (3) - No. I would like to say that in taking the liberty of formulating the questions I have adopted the course followed in Rajendra Kishore Sahi v. Nand Prasad, I.L.R. 1938 All. 972. 17. The case would new go back to the Bench concerned for decision of the appeal.