Judgment :- 1. The short question that arises for consideration in this execution second appeal is whether a judgment-debtor who did not raise the objection that execution of the decree is barred by limitation, on receipt of notice under Order XXI R.22 of the Code of Civil Procedure, 1908, is debarred from raising that contention at a later stage in the execution proceedings. In this case, the notice itself contained 'an invitation to the judgment-debtor to show cause how the decree was not barred by limitation'. The assignee decree holder in O. S. No. 7 of 1111 of the District Court, Quilon is the appellant. E.P.No.222 of 1964 was filed by the assignee decree holder before the Sub Court, Quilon. As notice could not be served on the judgment-debtors, substituted service was ordered and the appellant decree holder caused Order XXI R.22 notice published in the Malayala Rajyam daily dated 14 8-1966. Though it was mentioned in the notice itself that the decree holder has prayed for execution of the decree finding that the execution was not barred by limitation, the judgment-debtors did not appear in Court and raise any objection. On 16 81966 the Court ordered further steps as no objection that the execution of the decree was barred by limitation was taken by the judgment-debtors. Accordingly, Order XXI R.26 notice was sent and on 16121966 the second judginent-debtor who is the 7th respondent in this appeal filed an objection that the execution petition was barred by limitation. But the Court did not consider that objection and the decree holder was allowed to proceed. On 22 61968 the property was sold in execution. Thereupon, the second judgment debtor filed E. A. No. 737 of 1968 for setting aside the sale alleging that the execution petition was barred by limitation and the sale was vitiated by fraud and material irregularity. E.A. No. 736 of 1968 was filed by the vendee of the second judgment debtor also raising similar contentions. The execution petition and the above execution application were subsequently transferred to the Sub Court, Kottarakkara by the District Court as per order dated 1121971 and they were renumbered. The court allowed the execution applications and in allowing them the court also found that the decree was barred by limitation when E P. No. 222 of 1964 was filed on 3011-1964. The court allowed the execution applications and in allowing them the court also found that the decree was barred by limitation when E P. No. 222 of 1964 was filed on 3011-1964. Against the above order of the execution court the assignee decree holder who is the appellant here went in appeal before the court below. The court below came to the conclusion that the objection raised by the second judgment-debtor regarding limitation was not barred by res judicata and that E. P. No. 222 of 1964 was filed when the execution of the decree was already barred by limitation. Accordingly, the appeal was dismissed and the order of the execution court confirmed. It is against the above judgment of the court below that the assignee decree holder has come up in this execution second appeal. 2. In this case the judgment-debtors did not raise objection regarding limitation when notice was issued on the execution petition under Order XXI R.22 of the CPC. and the execution court directed the decree holder to proceed with the execution. Then the question is without challenging the above order of the execution court can the judgment-debtors raise the objection regarding limitation at a later stage. In Krishna Mohan Samanta v. Khandu Moyee Dasi (AIR. 1954 Calcutta 295) it is said: "If a judgment-debtor fails to raise an objection on the ground of limitation in spite of service upon him of the notice under 0.21 R.22 of the Code and the Court orders the execution to proceed, and that order attains finality in law, the objection becomes barred by constructive res judicata just as if such objection is taken and overruled and that decision is not challenged by appropriate proceedings." In the above case the learned judge has further said that the real test is whether after service of the notice under Order XXI R.22 of the Code and after expiry of the date or time for showing cause against the execution of the decree, the court has passed an order directing in effect the execution to proceed and if such an order has been passed and it has attained the finality in law, the plea of limitation no longer survives. In Ajimuddin v. Budheswar (A. I. R.1951 Assam 75) Thadani C. J., speaking for the Court, has said: "Sub-rule (2) of R.23 of 0-21, C.P C does not contemplate appearance of a judgment-debtor at a subsequent stage; Sub-rules (I) and (2) deal with the same stage of proceedings; sub-r. (1) contemplates the non-appearance of a judgment-debtor. sub-r. (2) his appearance, but at the same stage of the proceedings. In this case, the date on which the judgment-debtor could have taken the objection as to limitation, was the date mentioned in the notice to him under R.22 of 0.21. His failure to appear on the prescribed date, properly led the executing Ct. to pass an order ordering the decree to be executed which must stand until it is reversed on appeal or other appropriate proceedings." In the above case; as in this case, the judgment-debtor failed to appear though notice was issued by the execution court. Thereupon, the court ordered execution to proceed. At a later stage the judgment-debtor appeared in response to a notice for settlement of the sale proclamation and objected to the same contending that the execution application itself was time barred. In Narayan Chandra v. Nath Bank Ltd. (A.I.R.1967 Patna 124) relying on Mohan Lal Goenka v. Benoy Krishna (A.I.R.1953 S.C. 65), the Court held that the application to set aside the sale under S.47 C.P.C. is barred by the principles of res judicata. In the above decision, relying on Mungal Pershad Dichit's case (8 I. A. 123 (P. C.)) the court further said: "In these circumstances, their Lordships of the Privy Council held that even on the assumption that the sixth application was beyond time, the seventh application must be treated as within time because when on the service of the notice the judgment-debtor did not object to the execution on the ground of limitation, the Subordinate Judge, whether right or wrong, must be considered to have determined that it was not barred. It will be observed that in that case there was no decision on merit. It will be observed that in that case there was no decision on merit. The judgment-debtor did not appear in the execution proceeding on the service of notice and the Court passed orders for attachment in his absence, still their lordships of the Privy Council held that the judgment-debtor was debarred from questioning the validily of the order, though erroneous, and the order was final between the parties." In the above decision the court also said: "It is thus manifest that where the judgment-debtor, after service of notice under 0.21, R.22 of the Code of Civil Procedure, fails to appear and plead that the application is barred by limitation, and the court allows the execution to proceed, there is an implied decision by the court that the execution is not barred by limitation, and, when this order remains unchallenged either by way of review or by way of appeal, the judgment-debtor is precluded from raising the plea of limitation at a subsequent stage of the same proceeding or in a separate proceeding on the principles of res judicata." In Ramanuj v. Lakshmi Narayan (A. I. R.1960 Orissa 197) the Court said: "Thus an objection as to jurisdiction of executing court raised and finally decided in a prior execution would be barred by res judicata in subsequent execution irrespective of Whether the decision was erroneous in law or not." In Parameswaran v. Aiyappan Pillai (A. I. R.1959 Kerala 206) a Bench of this Court has said: "The matter must have been put in issue and only then the precise point so put and solemnly judged against the party is deemed to be finally decided. We must be able to say from the court's order that it was conscious of the question and intended to decide it against the judgment-debtor for, every interlocutory order in furtherance of the execution proceedings cannot imply a conscious adjudication of the question." In Para.7 of the above judgment it is also said: "The order for impleading could not therefore be said to involve by implication a decision as to the enforceability of the assignment in the matter of delivery of the properties covered thereby. It was only when the petitions under Order XXI, R.87 were dismissed that the enforcement of the sale canned rights regarding the items 1 to 4 could fall to be considered but as, it happened, no such consideration took place because the execution application was itself simultaneously struck off." In Rama Kurup v. Central Banking Corporation of Travancore Ltd. (1962 K.L. T. 683) Raghavan J., as he then was, bad occasion to consider the same question whether the failure to raise the plea of limitation at an earlier stage operates as constructive res judicata. In the above decision, it is said: "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 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 judgement-debtor and if if 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 is that proceeding." In the above decision it is further said: "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." In Shivashanker v. Baikunth (A. I. R.1969 S. C. 971) what the Supreme Court has said is only that the dismissal for default of the judgment-debtor of an application filed by him under S.47, C. P. C. , resisting the execution of the decree is not a final decision of the court after hearing the parties and therefore does not operate as res judicata and hence the judgment-debtor can raise that objection in a subsequent application filed by him. The Supreme Court also said that before a plea can be held to be barred by res judicata the plea must have been heard and determined by the court. This decision is not applicable to the facts of this case. Not only that the 'might and ought' rule contained in explanation IV of S.11, C. P. C., did not come up for consideration in the above case. 3. Order XXI R.23 of the C. P. C. reads: "23 Procedure after issue of notice. (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed. (2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit." In this case, notice under Order XXI R.22, CPC., issued on the execution petition contained a clear indication that the decree holder has made a prayer to the court to pass orders finding that the execution petition is not barred by limitation. As the judgment-debtor refused the notice as per orders of the court substituted service was effected by newspaper publication. The notice published in the newspaper also gave an indication that the Order XXI R.22 notice contained a reference or an invitation to the judgment-debtor to show cause how the decree was not barred by limitation. So, it cannot be said that the judgment-debtor had no specific notice regarding limitation. The notice published in the newspaper also gave an indication that the Order XXI R.22 notice contained a reference or an invitation to the judgment-debtor to show cause how the decree was not barred by limitation. So, it cannot be said that the judgment-debtor had no specific notice regarding limitation. The judgment-debtor who ought to have appeared and raised the objection that the execution Petition was barred by limitation did not appear and the execution court directed the decree-holder to take further steps. Under Order XXI R.23(1) 'the court shall order the decree to be executed'. Can the direction be without the execution court taking a decision on the question of limitation? Though no explicit order on the question of limitation was passed it has to be taken that the execution court has decided the question of limitation by implication. So, when the direction to the decree holder to take further steps was not challenged by the judgment-debtor it became final. What is the effect? The judgment-debtor cannot at a later stage raise the question of limitation in the execution proceedings because of constructive res judicata. It is now well settled that the principle of constructive res judicata is applicable to execution proceedings The Bench decision of this Court in Parameswaran Nair v. Aiyappan Pillai (A. I. R.1959 Kerala 206), in my opinion, cannot stand in the way of the above conclusions reached by me. One point stressed in the above decision is that the extension of the principle of constructive res judicata to matters in execution must be cautiously undertaken. The other point made out is that the matter must have been put in issue and must be deemed to be finally decided. The decision is also distinguishable on facts. 4. It is clear from the judgment of the court below that the court below has only considered the question of limitation though the appellant's counsel also contended that the sale was not vitiated by any irregularity and that no fraud was practised on Court. In view of my conclusions that the contention that the execution of the decree was barred by limitation could not be raised by the judgment-debtor because of constructive res judicata the case will have to go back to the court below for giving a finding on the other contentions urged in the appeal before that court. 5. In view of my conclusions that the contention that the execution of the decree was barred by limitation could not be raised by the judgment-debtor because of constructive res judicata the case will have to go back to the court below for giving a finding on the other contentions urged in the appeal before that court. 5. In the result, the judgment of the court below is set aside and the case remanded to the court below. The court below should take a decision on the other contentions raised by the appellant made mention of in Para.6 of its judgment and dispose of the appeal within three months from the date of receipt of the papers from this Court. The execution second appeal is allowed to the extent indicated above. No costs. Allowed.