JUDGMENT : R.C. Patnaik, J. - An order by the executing Court rejecting an application filed by the Petitioner under Order 21, Rule 58 of the Code of CPC has given rise to this appeal. 2. The Appellant-Petitioner laid claim to the property attached and sought reliefs alleging that she had purchased the attached property along with other land for a valuable consideration by registered sale deed dated 21-4-1959 and was in possession thereof since then. The decree-holder controverted the allegations denying the transfer in favour and possession of the Appellant-Petitioner.. Both parties led evidence-oral and documentary. On assessment of the evidence, the executing court held that the Appellant-Petitioner had title to the property and was in possession thereof and the attachment deserved to be lifted but for the fact that the application filed by the Appellant-Petitioner was barred by principle of constructive res judicata. 3. To appreciate the ground an which the petition was lodged, it is necessary to take note of a few other facts. When the property was attached, the Appellant-Petitioner filed an application under Order 21, Rule 58 of the Code of CPC which was registered as Misc. Case No. 115 of 1978. That application was dismissed 0 n 5-2-1979 for default. The present proceeding (Misc. Case No. 42 of 1980) was started on the second application under Order 21, Rule 58 of the Code of CPC filed on 14-3-1980. Two questions arise: (a) If Order 9 or Section 151 of the Code of CPC applies to an application under Order 21, Rule 58 dismissed far default or decided ex parte? and (b) If dismissal of an earlier application under Order 21, Rule 58 for default operates as .constructive res judicata vis-a-vis a subsequent application identical ground? 4. Under the Code, prior to its 1976 amendment remedy was provided to the aggrieved party providing for a suit under Rule 63. Hence, this Court adopting the view of the Patna High Court held that recourse to Order 9 or Section 151 of the Code of CPC cannot be had by a party aggrieved. His remedy was a suit under Rule 63. (See, in this connection, Rasananda Rath Vs. Ratha Sahu Raghunath More v. E. I. D. Party dl Co. Ltd. and Ors. 41 (1975) C. L. T.64, Niranjanlal Gupta and Ors. v. Dhirendra Mohan Panda and Ors. 49 (1980) C.L.T.. 408, Labanya Mohankudo and Ors. His remedy was a suit under Rule 63. (See, in this connection, Rasananda Rath Vs. Ratha Sahu Raghunath More v. E. I. D. Party dl Co. Ltd. and Ors. 41 (1975) C. L. T.64, Niranjanlal Gupta and Ors. v. Dhirendra Mohan Panda and Ors. 49 (1980) C.L.T.. 408, Labanya Mohankudo and Ors. v. Municipal Council, Parlakhemundi and Ors. 1975 (2) C.W.R. 1071.) Under the law, as amended by the Amendment Act of 1976, provision has been made in Rule 106 enabling the party, whose application under Order 21, Rule 58 of the Code of CPC has been dismissed for default or against whom an order has been passed ex parte, to move the executing Court for setting aside the order showing sufficient cause for his non-appearance. Hence, the express provision contained in the said rule excludes the operation of Order 9 and Section 151. This view finds support from the decision of this Court in Naka Dandu Vs. Sodi Savitri and Others, . 5. Reliance has been placed by the trial Court on a decision of this Court reported in Badal Sethi v. Suresh Chandra Dutta 46 (1978) C.L.T. 587. where this Court held that the dismissal of the first application filed u/s 47 of the Code of CPC for default operated on the second application as constructive res judicata. This rule laid down in Badal Sethi's case6 (supra) was not correct and was contrary to the decision of the Supreme Court reported in Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others. Hence, an application for review was filed against the said judgment and R. N. Misra J. (as his Lordship then was) reviewed and recalled that part of his observation holding that dismissal of the first application for default was an impediment to the second application by reason of the principle of constructive res judicata (vide the decision in Civil Review No. 34 of 1978). The I Supreme Court in Shivashankar Prasad's case' (supra) held that a plea to be held to be,barred by res judicata must have been heard and determined by the Court. The dismissal for default was not a final decision of the Court after hearing the parties and, therefore, did not operate as res judicata. The self-same objection could be raised in a subsequent application. 6. The dismissal for default was not a final decision of the Court after hearing the parties and, therefore, did not operate as res judicata. The self-same objection could be raised in a subsequent application. 6. Therefore, the decision of the executing Court rejecting the subsequent application filed under Order 21, Rule 58 of the Code of CPC on 14-3-1980 as barred by constructive res judicata, is unsustainable. Having regard to the fact that the executing Court" found title and possession with the Appellant-Petitioner and would have allowed the application filed by the Appellant-Petitioner under Order 21, Rule 58 but for the plea of constructive res judicata, which according to it stood as an impediment, 1 allow the application under Order 21,& Rule 58 and direct release of the property attached. In the result, the impugned order is vacated and the Misc. Appeal is allowed. But, in the circumstances, there would be no order as to costs. Final Result : Allowed