Judgment S. K. Jha, J. 1. This is a defendants petition directed against the order, dated the 30th September, 1982, passed in title Suit No.354 of 1979, by the munsif, Araria. 2. By the impugned order, the application of the plaintiff-opposite party for amendment of the plaint has been allowed to the effect that the earlier suit, namely, Title Suit No.316 of 1960 had already abated under the provisions of section 4 (c) of the Consolidation of Holdings and Prevention of Fragmentation act, 1956 (Bihar Act XXII of 1956) (hereinafter referred to as the Act ). The sole question for determination is as to whether the impugned order falls within the jurisdiction of the court below or not. Ordinarily and generally, prayer for amendment of the plaint is usually allowed, but in view of the special facts and circumstances obtaining in this case, i am constrained to take a view which would disentitle the plaintiff opposite party to any relief by way of amendment and to hold that the impugned order is with out jurisdiction much to my discomfiture. 3. A short narration of the relevant facts for the disposal of this application is warranted. Previously, the plaintiff-petitioner instituted a Title Suit No.316 of 1960 for declaration of title and recovery of possession. On 1st July, 1964, that suit was dismissed by the trial court. The petitioner then preferred an appeal before the lower appellate court, which was registered as Title Appeal no 260 of 1964, which was allowed on the 21st of May, 1976 the petitioners suit was decreed. Then the opposite party came in second appeal to this Court, which was registered as Second Appeal no.569 of 1976. That appeal was also dismissed and the petitioner succeeded in the suit. He then levied execution of the decree passed in the suit, which was registered as Execution Case No.18 of 1976. On 16-11-1977, delivery of possession was effected by the executing court. There after the opposite party filed a miscellaneous case in that execution case, namely, miscellaneous Case No.360 of 1978 for a declaration that the delivery of possession was merely a paper transaction. That miscellaneous case was also dismissed by the executing court on 14th December, 1979. On 16-11-1977, delivery of possession was effected by the executing court. There after the opposite party filed a miscellaneous case in that execution case, namely, miscellaneous Case No.360 of 1978 for a declaration that the delivery of possession was merely a paper transaction. That miscellaneous case was also dismissed by the executing court on 14th December, 1979. Having, thus, been defeated on all fronts excepting in the trial court, which, for all practical purposes, is merely a waste paper now, the opposite party has thereafter filed a fresh title suit registered as Title Suit no.354 of 1979 for a declaration that the earlier Execution Case No.18 of 1976 had abated in view of Sec.4 (C)of the Act. 4. Learned Counsel for either party was not in a position to give the date of the Notification under Sec.3 of the act, but that is neither here nor there. The crux of the matter is as to whether such a relief by way of amendment that the earlier suit and all the subsequent proceedings relating thereto had abated is permissible in law or not ; or, in legal parlance, whether it affects the jurisdiction of the Court below. In my considered view, it does affect the jurisdiction of the court below. This point with regard to abatement ought to have been taken in the earlier suit itself or the earlier execution proceedings themselves. It is well settled that a plea which ought to have been taken in the earlier suit and which had not been so taken, such a matter would be barred by the principle of res-judicata)C. F. Rao Sobhag Singh V/s. Rao Ranjit Singh, 49 c. W. N 743 (P. C.)Constructive res-judicata applies equally to the execution proceedings. Reference in this connection, may be made to a decision of the Judicial Committee of the privy Council in Mungul Pershed Dichit and another V/s. Grija Kant Lahiri, (I. L. R.8 Cal 51) and another decisions of this court in Kameshwar Singh V/s. Krshnanand singh and others, (AIR 1955 Pat.423 ). Further-more, a Full Bench of this Court and the highest Court of this land has also held that the rule of constructive res-judicata applies to the question of jurisdiction also. Further-more, a Full Bench of this Court and the highest Court of this land has also held that the rule of constructive res-judicata applies to the question of jurisdiction also. The Full Bench decision of this Court referred to by me above is to be found in Baijnath Prasad Sah V/s. Ramphal Sahni, 1962 BLJR 110 (F. B.) and the decision of the Supreme Court in the case of, Mohanlal Goenka V/s. Benoy Krishna mukherjee and others, AIR 1953 SC 65 ). 5. Apart from this, the question with regard to the applicability of Sec.4 (c) of the Act came up for consideration before a Division bench of this court recently in the case of Jai Prakash Prasad and others V/s. Rameshwar Prasad and others, AIR 1986 Patna 239), wherein, it has been held by the Division bench that on principle, it is impermissible to permit a litigant to raise a plea of abatement under Sec.4 (c) for the first time even in a second appeal if he has designedly or negligently failed to do so in the trial court of the first appellate court. All through personally, speaking, I have grave doubts with regard to the corrections of the last mentioned division Bench decision of this Court, to use the words of Lord Denning (L. C.)" i am bound hand and foot" by the division Bench decision of this Court, but even leaving this question apart, for the reasons assigned by the earlier, this application is bound to succeed. 6. I, accordingly, allow this application and set aside the impugned order as being without jurisdiction, but without costs. Revision allowed.