Judgment :- 1. Judgment-debtor raised a question in execution to the effect that he is entitled to the protection under the Kerala Debt Relief Act, 1977 (Act 17/1977). According to the judgment-debtor, the debt he owed to the decree-holder is less than Rs.3,000/- and since he is having only income not more than Rs.3,000/-, the decree is not executable. He submitted that the provisions of Act 17/1977 have to be applied and on application, the court has to hold that the judgment debtor is not liable to pay any amount. The Execution Court considered this question. The Execution Court found that the judgment-debtor ought to have raised this point at the trial stage and as he has not raised this point at the trial stage, he cannot raise it before the Execution Court. 2. In reply to this argument, the counsel for the revision petitioner submitted that the decree was passed in this case on 31-1-1977, which was a decree for realisation for an amount of Rs.2,606.95. Act 17/1977 was published in the official gazette on 12-8-1977. By the repealing provision, the earlier Ordinances were repealed. By S.13 of Act 17/1977 Ordinance 9 of 1977 which had repealed Ordinance 1/1977 was repealed. Further the provisions of Act 17/1977 inclusive of the repealing provisions contained in S.13 have been given retrospective effect from 13th January, 1977.13-1-1977 is the date on which Ordinance 1/1977 had come into effect. Counsel for the respondent submitted that even though Act 17/1977 was promulgated by publishing it in the official gazette only on 12-8-1977 by virtue of the repealing provision, viz., by S.13 and by virtue of the deeming provision of the Act it has to be deemed that Act 17/1977 was in force on 13-1-1977 and so when the decree was passed it has to be deemed that the Act was in force. 3. Counsel relied on 1978 K.L.T. 508 (Ahamed v. Usha Trading Corporation) wherein it is stated that "the effect of this retrospective repeal and re-enactment is to create a legal fiction that Ordinance 1 of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onwards". 3. Counsel relied on 1978 K.L.T. 508 (Ahamed v. Usha Trading Corporation) wherein it is stated that "the effect of this retrospective repeal and re-enactment is to create a legal fiction that Ordinance 1 of 1977 had never come into effect and that the provisions of Act 17 of 1977 were in force from 13-1-1977 onwards". Counsel for the respondent submitted that this legal fiction has to be given effect to in full and if it is given effect to in its entirety without stopping it in the mid-way the defendant ought to have raised the contention at the trial stage itself that the debt has been wiped off under Act 17/1977. 4. Two questions arise from the factual situations unfolded in the case. One question is whether a debtor who did not raise the plea of protection under Act 17/1977 is completely barred to raise it in execution. The second question is whether the Execution Court can hold that in a decree which has been passed on 31-1-1977 a defence which was not at that time really available ought to have been taken on the basis of the retrospective operation of Act 17/1977 which states that such an Act came into force on 13-1-1977. 5. I do not want to investigate the first question since I feel that on the second question the court below has gone wrong and that the matter has to be remitted for fresh consideration. The court below has considered the matter applying the principles of res judicata. The fundamental points to be kept in mind in applying the principles of res judicata have not been adverted to by the court below. In fact those principles have not been kept in mind when the court below applied the rule of res judicata. In a decision in C.R.P.No.458/88 =1989 (2) KLT 264 I had occasion to consider under what all circumstances the principles of res judicata can be applied. I have referred to in that decision, the observations of the House of Lords in a decision reported in New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) A.C.I) where the House of Lords observed: "the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. I have referred to in that decision, the observations of the House of Lords in a decision reported in New Brunswick Rail Co. v. British and French Trust Corporation Ltd. (1939) A.C.I) where the House of Lords observed: "the doctrine of estoppel (per rem judicatam) is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them". Quoting the observations of Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 100) I expressed the view that the rule of resjudicata has to apply "except in special cases", viz. the doctrine is subject to exceptions. If special circumstances are there; before applying the principles of res judicata the court has to advert to those circumstances. Here, in this case, the rule of res judicata is applied on the basis of might and ought theory. In Mills v. Cooper (1967) 2 Al1.E.R.100) this aspect of the matter has been very illustrately said by Diplock LJ. "a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reason diligence have been adduced by that party in the previous proceedings has since become available to him". Whatever be the diligence on the part of the petitioner it is impossible for him to raise a defence which was not then available when the suit was decreed and had become available only by a legal fiction introduced in an Act, which was promulgated on 12-8-1977 after the decree. Whatever be the diligence on the part of the petitioner it is impossible for him to raise a defence which was not then available when the suit was decreed and had become available only by a legal fiction introduced in an Act, which was promulgated on 12-8-1977 after the decree. I am sure that in such a case the theory of might and ought should not have been applied to say that the petitioner ought to have raised the plea in the trial stage itself. 6. Further I may quote what Lord Upjohn in (1966) 2 Al1.E.R. 536 (Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd.) said: "All estoppels are not odious but must be applied so as to work justice and not injustice, and I think that the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind". It is dear from the above quote that the principles of res judicata cannot be applied where the court can discern that by applying that principle there will be a failure of justice. In short what I want to say is that the court below has no justification to say that the petitioner herein ought to have raised the plea that the debt is less than Rs.3000/- and so he has no liability to pay that debt under Act 17/1977 in the trial stage, when such a provision was not enacted at all though when it was enacted, it has been given retroaction by a deeming provision. In the result, I cannot agree with the decision of the court below. I set aside the order and remit the case for further consideration as to whether the petitioner can successfully contend that he is entitled to the benefits of Act 17/1977 on merits. With these observations, the Civil Revision Petition is allowed.