JUDGMENT : R.N. Misra, J. - The judgment-debtors are in appeal against an original order of the executing Court rejecting their application u/s 47, Code of Civil Procedure. 2. Nilamani and Rajkishore were first cousins. Rajkishore brought a Emit for partition impleading Nilamani and his two sons Samkishore and Gourkishore as Defendants. The relief asked for in the suit was that Defendant No. 1 who was the karta should give 8 annas interest out of the Ja and Jha schedule properties which were alternately valued at Rs. 8080.50. Proportionate costs of the final decree proceedings come to Rs. 340 75. Execution Case No. 198 of 1967 was levied for recovery of the aforesaid amounts and coparcenary properties were proceeded against. The decree which was put under execution clearly indicated that Defendant No. 1 was liable. The said Defendant apparently was not impleaded as the Karta. An application u/s 47, CPC was filed by the present Appellants who were judgment-debtors 2 and 3 in the said execution case. 3. The learned Subordinate Judge overruled the objection and dismissed the application u/s 47, Code of Civil Procedure. The present appeal is directed against that decision of the executing Court. 4. The decree that was passed in O.S. No. 9 of 1955, as far as material, ran to the following effect: ...Let the parties amicably partition the properties as well as movables according to above share within one month hence after which any of the parties may deposit Rs. 100/- provisionally for appointment of a survey knowing commissioner to effect partition of the above. In case Defendant No. 1 does not deliver half share from Ja and Jha schedules immovables he is liable to pay the value thereof amounting to Rs. 8080.50. The sum of Rs. 340-12.0 be paid by the Defendants 1 to 5 and Rs. 340-12.0 by Defendants 6 to 14 & 17 to 35 to the Plaintiff on account of the costs of the suit. So far as the decretal costs are concerned, there does not appear to be any serious objection. In fact it is clear that so far as Rs. 340.12.6 is concerned, Defendants 1 to 5 are jointly liable to pay. The liability for Rs. 8080.50, as claimed by the objectors, however, seems to have been fixed upon Defendant No. 1 and on his failure to deliver the half share the aforesaid amount became payable. In fact it is clear that so far as Rs. 340.12.6 is concerned, Defendants 1 to 5 are jointly liable to pay. The liability for Rs. 8080.50, as claimed by the objectors, however, seems to have been fixed upon Defendant No. 1 and on his failure to deliver the half share the aforesaid amount became payable. The objection raised by the judgment-debtors Appellants was that Defendant No. 1 is alive; he has his interest in the property and the same is liable to be proceeded against, but the coparcenary interest of the Defendants-objectors cannot be proceeded against for non-satisfaction of the decree by Defendant No. 1. The learned Subordinate Judge disposed of this contention against the objectors by saying: It is admitted that the Petitioners (objectors) and the judgment-debtor No. 1 (their father' are living jointly in mess and property so far. There is no evidence to show that there is a severance of their joint status. Therefore, as long as there is no severance of their joint status, their shares cannot be ascertained as claimed by them. Further they are equally liable with Defendant No. 1 to repay the amount having benefited by not delivering the ancestral joint family immovables to the decree-holder as directed by the Court. Under such circumstances, the prayer of the Petitioner that they may not be held responsible for the non-payment of Rs. 8080.50 by Defendant No. 1 and to order for the dismissal of the execution in respect of their interest in the joint family is not tenable. Mr. Mohapatra for the Appellants seriously challenges this conclusion. As the matter stands, the learned Subordinate Judge seems not to have really bestowed attention to the question mooted before him by the objectors. He seems to have disposed of the application u/s 47, CPC more or less on a technical ground by saying, The record goes to show that the Petitioners who have notice of the execution already ripe from the earliest stage have absolutely taken any objection to the execution as sought for by the decree-bolder. It is also an admitted fact that Misc. Case No. 152 of 1969 was filed by the Defendant No. 1, father of the Petitioners has recently decided as early as December, 1969 rejecting the plea of Defendant No. 1 about the executability of the decree. (There appears to be some apparent mistake, in this portion of the order). It is also an admitted fact that Misc. Case No. 152 of 1969 was filed by the Defendant No. 1, father of the Petitioners has recently decided as early as December, 1969 rejecting the plea of Defendant No. 1 about the executability of the decree. (There appears to be some apparent mistake, in this portion of the order). Under such circumstances as decided in the case reported in Niranjan Das and Ors. v. Liquidator, Puri Bank Ltd. 1968 C.L.T. 758, if the judgment-debtors have not taken any objection after receipt of notice under Order 21, Rule 22, CPC and fails to raise any objection which he might and ought to have raised at that stage the Court in passing orders for execution of the decree must be deemed to have decided the objection against him and subsequent executions are, therefore, barred by principles of constructive res judicata. Therefore, following the aforesaid decisions the objections of the judgment-debtors-Petitioners in respect of the executability of the decree in respect of their shares in the properties brought for sale is barred by principles of res judicata. This view in law seems to be clearly untenable. It is true that in the two decisions referred to in the order of the learned Subordinate Judge, this Court and the Patna High Court had taken the view as indicated in the impugned order. But the view taken in these two decisions does not seem to be good law and I find it difficult to follow them. Section 11, CPC provides, No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV deals with constructive res judicata and states, Any matter which might and caught to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV deals with constructive res judicata and states, Any matter which might and caught to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. To raise a plea of res judicata two aspects are material-firstly the matter must have been directly and substantially in issue in both the suit that is the previously instituted suit and the present suit and secondly the issue muat have been heard bond finally decided by such Court. Explanation IV by its deeming provision provides that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be taken to be matter directly and substantially in issue in the previous suit. Thus the legislature by the deeming provision through Explanation IV deems that matter to be in issue in the previous suit. Explanation IV dose not cover the second aspect which is as much a requisite to raise the plea of res judicata. Explanation IV has to be read along with the basic provision in Section 11 Code of Civil Procedure. Therefore, merely on account of a deeming provision in Explanation IV, non-raising of an objection at an earlier stage when notice under Order 21, Rule 22 CPC has been served or dismissal of an application u/s 47, CPC without a final hearing and a decision of the objection cannot raise the plea of res judicata by operation of Explanation IV. Their Lordships of the Supreme Court in Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others, have also adopted this view. They have quoted with approval the view expressed by their Lordships of the Judicial Committee of the Privy Council of Moharaja Radha Parshad Singh v. Lal Sahab Rai 17 I.A. 160, where it had been stated, None of the questions, either of fact or law, raised by the pleadings of the parties, was beard or determined by the judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Code of Civil Procedure. It must fall within one or other of the sections of Chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty attached to such dismissal in any case being that the Plaintiff cannot bring another suit for the same relief. Their Lordships continued to state, From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. Only a decision by a Court could be res judicata, whether it be statutory u/s 11, CPC or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as res judicata the same must have been beard and finally decided. In view of this clear position in law the learned Subordinate Judge seems to have gone wrong in relying upon the two decisions referred to above and has erroneously held that non-raising of the objection on an earlier occasion after service of notice under Order 21, Rule 22 CPC gave rise to res judicata as covered by Explanation IV to Section 11, Code of Civil Procedure. The law as indicated in the aforesaid two decisions runs counter to the pronouncement of their Lordships of the Supreme Court. In such circumstances, I hold that the rule laid down in Niranjan Das and Ors. v. Liquidator Puri Bank Ltd. 1968 C.L.T. 758; does not state the law properly and must be taken to have been impliedly overruled by the decision of their Lordships of the Supreme Court. 5. As I have already indicated, the learned Subordinate Judge without applying his mind at length to the merit of the matter disposed it of on the technical ground of res judicata. As I have already found there is no res judicata and the objection u/s 47, CPC was maintainable and was bound to be examined on its own merits. 6. The brief reasons indicated by the learned Subordinate Judge which I have referred to above are not sufficient to throw out the objection of the Appellants. If the matter had been discussed properly and the learned Subordinate Judge had given this as his considered view in the matter, I would certainly have vacated it and upheld the objection. 6. The brief reasons indicated by the learned Subordinate Judge which I have referred to above are not sufficient to throw out the objection of the Appellants. If the matter had been discussed properly and the learned Subordinate Judge had given this as his considered view in the matter, I would certainly have vacated it and upheld the objection. But as I have a feeling he instead of applying his mind properly to the merits of the objection went by the plea of res judicata and in passing touched the question of merit. In fitness of things it would, therefore, be proper to vacate his decision and call upon him to dispose of the objection u/s 47, CPC on its own merit. 7. I would, therefore, allow the appeal, set aside the order of the learned Subordinate Judge and remit the matter to him for a fresh disposal in accordance with law. Costs of this appeal shall follow the event. Final Result : Allowed