Judgment : The respondent is the plaintiff/decree holder and the revision petitioners are the respondents 8, 6, 10, 11 and 15 in the execution petition filed by the plaintiff/decree-holder. 2. The plaintiffs suit is one for recovery of possession and for past and future mesne profits and the said suit was decreed on 30.4.1990. Pursuant to the same, the plaintiffs filed E.P.No.414 of 1993 and the said execution petition was resisted by the revision petitioners, by filing a petition under Secs.47 and 151, C.P.C. in E.A.No.502 of 1999 and the same came to be dismissed. Aggrieved by the same, this revision petition has been filed. 3. The case of the revision petitioners, as stated in the petition, is that the first petitioner is residing in item (1), the 2nd petitioner in item (2), the 3rd petitioner in item (3), the 4th petitioner in item (4) and the 5th petitioner in item (5) of the properties, stated in the suit schedule in the petition and they have been living in their respective properties for over four decades and prescribed title by prescription. The respondents claims to have obtained an ex parte decree against several persons, including the petitioners for a large extent of property. Even though several other residents of that area are owning specific independent portions like the petitioners herein and the respondent has not specified the portions or the respective four boundaries as against the petitioners. The respondent has not furnished survey number and the four boundaries have not been properly furnished. The 5th petitioner herein has been residing on her own independent right and she was not made as a party at the time of filing of the suit, but, whereas her husband alone was made as a party, who had no right in the suit properties. After passing of the decree, the 5th petitioners husband died and she was made as a party as an heir of her husband and the decree obtained against her and the validity and the executability of the said decree are challenged. 4. The petitioners have also stated that they have filed an application under Sec.47, C.P.C. in E.A.No.300 of 1996, questioning the validity of the decree sand the said application was dismissed for default on 7.8.1997. As the said application was dismissed without any enquiry, the same is not a bar for filing a fresh application. 4. The petitioners have also stated that they have filed an application under Sec.47, C.P.C. in E.A.No.300 of 1996, questioning the validity of the decree sand the said application was dismissed for default on 7.8.1997. As the said application was dismissed without any enquiry, the same is not a bar for filing a fresh application. The petitioners prayed for a declaration that the decree is not executable, void, illegal and not capable of execution against the petitioners. 5. The respondent/plaintiff resisted the said petition, by filing a counter, wherein, he has stated that the petitioners have already filed a petition under Secs.47 and151 , C.P.C. in E.A.No.300 of 1996, questioning the validity of the decree and the said petition was dismissed and an application to restore the same was filed in E.A.No.766 of 1997 and the same was also dismissed and another application was filed to review the said order in E.A.No.452 of 1998 and that application was also dismissed. The orders passed in E.A.No.766 of 1997 and E.A.No.452 of 1998 would also operate as res judicata and hence, the present application in E.A.No.502 of 1999 for the very same relief is barred under the principles of constructive res judicata. 6. It is further stated that the execution petition itself was ordered, after hearing both the parties on merits on 11.2.1999 and therefore, the petition under Sec.47 is not maintainable. The respondents suit is one for declaration and possession and the same was decreed and the same cannot be questioned by filing an application under Sec.47, C.P.C. the respondent obtained decree for the entire properties and the petitioners are trying to split the suit properties into parties to suit their convenience. The purpose of filing the petition by the revision petitioners is only to drag on the proceedings. 7. The respondent herein taken out an application in E.A.No.1328 of 1999, contending that the petition filed by the petitioners is liable to be dismissed, as the same is hit by constructive res judicata, as provided under Sec.11, Explanation 7 and 151, C.P.C. The Court below had taken both the applications together for enquiry and dismissed E.A.No.502 of 1999 and allowed E.A.No.1328 of 1999. Aggrieved by the same, this revision has been filed. Heard the learned Advocate for the revision petitioners and the respondent. 8. Aggrieved by the same, this revision has been filed. Heard the learned Advocate for the revision petitioners and the respondent. 8. Mr.V.Raghavachari, the learned Advocate for the revision petitioners would mainly contend that mere dismissal of the application filed by the petitioners under Secs.47 and 151, C.P.C. would not preclude them from filing a fresh application for the very same relief, as the earlier application was dismissed for default. Any application for that matter decreed or dismissed ex parte, would not operate as res judicata and therefore, the findings of the Court below that the subsequent application filed by the petitioners would be hit by the principles of res judicata is not proper. 9. Mr.V.Raghavachari further contended that any order passed ex parte, and more particularly, an order of dismissal of an application or even the suit, would not preclude the parties from bringing another suit. In fact, during the course of the argument, the learned Advocate for the revision petitioners has given an example that if a suit on promissory note is filed and the same was dismissed for default, it would not preclude the plaintiff from filing a fresh suit on the same cause of action and for the very same relief, and very authoritatively argued that such a suit is maintainable. 10. On the contrary, the learned Advocate for the respondent would contend that the earlier petition filed by the petitioners under Secs.47 and 151, C.P.C. was no doubt, dismissed for default, but, they have filed an application to restore the same and the same was dismissed on merits. Further application to review the said order was also dismissed on merits. If at all the petitioners are aggrieved by the orders passed in E.A.No.766.1997 and E.A.No.452 of 1998 and if they are so advised, the remedies are elsewhere and they cannot once again file an application for the very same relief, when the matter between the parties has been finally heard and decided. The respondent also pointed out that the application filed to restore was ordered on merits and the review application was also ordered on merits and those orders were not ex parte orders. 11. Now, the question is, whether the application filed by the petitioners under Secs.47 and 151, C.P.C. for the second time for the very same relief between the very same parties would hit by the principles of res judicatae 12. 11. Now, the question is, whether the application filed by the petitioners under Secs.47 and 151, C.P.C. for the second time for the very same relief between the very same parties would hit by the principles of res judicatae 12. There is no dispute that the respondent/plaintiff obtained a decree against the petitioners in O.S.No.279 of 1981. It appears that the defendants have not challenged the said decree by filing any appeal and therefore, the decree has become final. Pursuant to the same, the plaintiff/decree holder filed execution petition and the same was sought to be challenged by the petitioners 1 to 4 herein by filing an application under Sec.47, C.P.C. in E.A.No.300 of 1996 and the said petition was dismissed for default and the application to review the said order was also dismissed. After having embraced defeat in all these applications, the present petitioners have designed to file one more application for the very same relief and the said application was dismissed by the Court below. 13. The question arises in this case is, whether the orders passed by the Court in the earlier application for the very same relief could be considered as res judicata or at least constructive res judicata. 14. It is the contention of the learned Advocate for the revision petitioners that it would neither operate as res judicata nor even as a constructive res judicata. In order to support the contention, he has relied upon the following judgments. 15. In Asia Bivi and others v. Sehu Mohamed Rowther and others Asia Bivi and others v. Sehu Mohamed Rowther and others Asia Bivi and others v. Sehu Mohamed Rowther and others (1920)12 L.W. 431 , the plaintiffs brought out a suit for declaration of the title to certain properties and for having certain alienations in favour of the defendants declared invalid and not binding on them. They alleged themselves to be co-sharers and in joint possession with the defendant. The suit was dismissed for default underO.9, Rule 9, C.P.C. Subsequently, the plaintiffs brought a fresh suit for a declaration of their title to the property and also for partition and separate possession. They alleged themselves to be co-sharers and in joint possession with the defendant. The suit was dismissed for default underO.9, Rule 9, C.P.C. Subsequently, the plaintiffs brought a fresh suit for a declaration of their title to the property and also for partition and separate possession. That in the said circumstances, it was held, “the cause of action for partition and separate possession, does not arise until the plaintiffs decided to separate and the defendants refused or neglected to give their share" and therefore, it was held that the subsequent suit was not barred by res judicata. 16. In Anagathedvan minor by guardian mother, Nagathal and others v. ARLV.Natarajan Chettiar and others Anagathedvan minor by guardian mother, Nagathal and others v. ARLV.Natarajan Chettiar and others Anagathedvan minor by guardian mother, Nagathal and others v. ARLV.Natarajan Chettiar and others (1947)2 MLJ. 189 , the earlier decision in Munni Bibi v. Triloki Nath Munni Bibi v. Triloki Nath Munni Bibi v. Triloki Nath 61 MLJ. 196, which was said to be an authority on the question of res judicata was considered and it was observed. “A somewhat similar question arose in claim proceedings which was afterwards the subject of title suit between codefendants. It is however unnecessary to decide whether the ordinary rule of res judicata between co-defendants would have apply; because, it was held in Narasimhachari v. Kaghava Padayachi Narasimhachari v. Kaghava Padayachi Narasimhachari v. Kaghava Padayachi (1945)2 MLJ. 89 , that “the earlier decision does not operate as res judicata, as the decision in a claim suit, as well as in the claim petition has no application beyond the execution of the decree, which had given rise to those proceedings and has relationship only to the particular decree that was being executed.” 17. The case in Shivashankar Prasad Shah and others v. Baikunth Nath Singh and others Shivashankar Prasad Shah and others v. Baikunth Nath Singh and others Shivashankar Prasad Shah and others v. Baikunth Nath Singh and others (1969)1 S.C.C. 710, arose in respect of the dismissal of objection under Sec.47 for default of the judgment debtors and they have filed another application raising the very same objection, which was also dismissed. That third application on the same ground was also dismissed on the ground that the objection was barred by the principles of res judicata and that it had no merits. That third application on the same ground was also dismissed on the ground that the objection was barred by the principles of res judicata and that it had no merits. But, the appellate Court confirmed the said petition, but, the High Court reversed it and the matter was taken to the Supreme Court, wherein, it was observed, • (i) “That before a plea can be held to be barred by res judicata, that plea must have been heard and finally decided by the Court. Only a decision by a Court on merits could be res judicata whether it be statutory under Sec.11, C.P.C. 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 heard and finally decided. • (ii) An execution petition which has been dismissed for default of the decree holder though by the time that petition came to be dismissed the judgment debtor had resisted the execution on one or more grounds does not bar the execution of the decrees in pursuance of fresh execution petition filed in accordance with law. • (iii) Even the dismissal for default of objections raised under Sec.47, C.P.C., does not operate as res judicata when the same objection are raised again in the course of the execution.” The learned Advocate for the revision petitioners very much relied upon this case and submitted that the earlier application filed by the petitioners under Secs.47 and 151, C.P.C. for the very same relief is not barred by res judicata and the Court below was not correct in dismissing the application on the said ground. 18. In Union of India and others v. Scientific Workers Association (Regd.), Kanpur and others Union of India and others v. Scientific Workers Association (Regd.), Kanpur and others Union of India and others v. Scientific Workers Association (Regd.), Kanpur and others (1994)2 S.C.C. (Supp.) 159. The Senior Scientific Assistants, working in the Department of Defence Production, Government of India demanded for revision of pay scale, which was referred to the Board of Arbitration constituted under the scheme called Joint Consulative Machinery and Compulsory Arbitration for Central Government Employees (JCM Scheme). The Board gave its award on August 12, 1985. The Senior Scientific Assistants, working in the Department of Defence Production, Government of India demanded for revision of pay scale, which was referred to the Board of Arbitration constituted under the scheme called Joint Consulative Machinery and Compulsory Arbitration for Central Government Employees (JCM Scheme). The Board gave its award on August 12, 1985. The Scientific Workers Association, the respondent therein preferred an appeal before the Central Administrative Tribunal, seeking a direction to the Government of India to implement the award. During the pendency of the application, Government of India on November 11, 1988 decided to implement the award with effect from January 1, 1988. The question before the Tribunal was, whether the Government of India could modify the award so as to alter the date of its implementation from September 22, 1982 to January 1, 1988. The tribunal answered the question in the negative; allowed O.A.No.952 of 1986 and directed the Government of India to implement the award with effect from September 22, 1982. But, the Government of India placed the matter before the Cabinet which took a decision on August 23, 1989 to move a resolution before Parliament under Clause 21 of the JCM Scheme for modification of the date of implementation of the award from September 22, 1982 to January 1, 1988. The Lok Sabha adopted the resolution on October 13, 1989 approving the modification of the date of implementation of the award and similar resolution was passed by the Rajya Sabha on December 29, 1989. That in the meanwhile the Union of India, filed Special Leave Petition before the Supreme Court against the judgment of the tribunal. The Union of India also filed a review petition pursuant to the adoption of resolution by the two houses of Parliament and the same was dismissed on the ground that the resolution adopted by the two Houses of Parliament could not have the effect of modifying the judgment of the tribunal. The civil appeal filed before the Supreme Court was dismissed for default. The other appeal by the Union of India is against the judgment of the tribunal dated August 19, 1989 in O.A.No.952 of 1986 and also against the order of the tribunal dated April 10, 1990, rejecting the review application filed by the Union of India. The civil appeal filed before the Supreme Court was dismissed for default. The other appeal by the Union of India is against the judgment of the tribunal dated August 19, 1989 in O.A.No.952 of 1986 and also against the order of the tribunal dated April 10, 1990, rejecting the review application filed by the Union of India. In that circumstances, it was held, “we are of the view that after the adoption of the resolutions by the two Houses of Parliament a new situation had arisen. It is no doubt correct that the passing of the resolutions by itself, could not have the effect of modifying the judgment of the tribunal, but, it was certainly a valid ground for filing the review petition, but the same was dismissed.” 19. The Supreme Court, in the case of State of Maharashtra and another v. National Construction Company, Bombay and another State of Maharashtra and another v. National Construction Company, Bombay and another State of Maharashtra and another v. National Construction Company, Bombay and another (1996)1 S.C.C. 735 , considered the principles enunciated under Sec.11, C.P.C. and after observing that Sec.11, C.P.C. deals with the doctrine of res judicata and provides that any matter which might or ought to have been made a ground for defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit and after extracting, Sec.11, observed, “The important words are has been heard and finally decided. The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non joinder, that cannot operate as res judicata.” 20. Mr.V.Raghavachari, the learned Advocate for the petitioners relied upon an unreported judgment of this Court (N.P.Sivasubramaniam, J.) in Chandran and 5 others v. J.Deivani and two others, A.A.O.No.23 of 2000. In the said case, the appellants therein preferred an appeal as against the order passed by the Court below in an execution application filed in the execution petition. Mr.V.Raghavachari, the learned Advocate for the petitioners relied upon an unreported judgment of this Court (N.P.Sivasubramaniam, J.) in Chandran and 5 others v. J.Deivani and two others, A.A.O.No.23 of 2000. In the said case, the appellants therein preferred an appeal as against the order passed by the Court below in an execution application filed in the execution petition. The appellants therein obstructed the execution of the decree and the decree holder filed an application underO.21 , Rule 97 read with Sec.74, C.P.C. for removal of obstruction by the third party and to deliver vacant possession. The obstructors claimed that they are in possession of the property and in the said proceedings the trial Court had found that the appellants therein were not in possession of the properties bearing different door numbers and in the said context, it was held that it is the duty of the plaintiffs to identify the property correctly and in the said case, the plaintiff had not succeeded in identifying the property and the suit filed by the plaintiffs was dismissed for default and the plaintiff had filed a petition for reconstruction and there was no adjudication of the rights of the parties, as it was decreed ex parte. Only in the said circumstances, the learned Judge held, “Considering that the execution petition is out of an ex parte decree, the executing Court has a duty to find out whether the decreed property is identified or not and therefore, I am unable to sustain the objection relating to the issue being barred by res judicata". That is not the case in our hand and hence, this judgment has also no application to the case on hand. 21. In Mrs.Achamma George v. R.Krishnaswamy Mrs.Achamma George v. R.Krishnaswamy Mrs.Achamma George v. R.Krishnaswamy (1998)1 L.W. 498 , this Court (S.Jagadeesan, J.,) had held, “The petitioner had raised the objections with regard to the maintainability of the suit in the written statement. He has disputed the plea of the respondent that the exemption under Sec.30 of the Tamil Nadu Buildings (Lease and Rent) Control Act is applicable to the present petition mentioned premises. There is no dispute that the suit had been decreed ex parte on 30.4.1990. The petitioners had filed an application for setting aside the ex parte decree and the same was dismissed, as against which the petitioner preferred an appeal and that was also dismissed. There is no dispute that the suit had been decreed ex parte on 30.4.1990. The petitioners had filed an application for setting aside the ex parte decree and the same was dismissed, as against which the petitioner preferred an appeal and that was also dismissed. Hence, the ex parte decree has become final. “ The learned Judge came to such a conclusion, following the principles laid down by the Patna High Court in Habibur Rahman v. Vijay Charan Abhay Charan Dubey and Brothers Habibur Rahman v. Vijay Charan Abhay Charan Dubey and Brothers Habibur Rahman v. Vijay Charan Abhay Charan Dubey and Brothers A.I.R. 1959 Pat. 31, wherein it was held that,” where it has been clearly laid down that the application of the doctrine of res judicata has not to depend on the decree being ex parte or contested. A party is as much bound by an ex parte decree as by a contested one. “ After referring to several other rulings, the learned judge had observed,” It is now well settled that the original decree or judgment must be taken to be subsisting and valid until it has been referred or superseded by some ulterior proceedings.“ 22. Mr.P.Rajagopal, the learned Advocate for the respondent has further submitted that it has become habitual for the petitioners to file applications one after another to drag on the proceedings and it is nothing, but, short of above process of Court and the same is not permissible, to which, the learned Advocate for the respondent relied upon case of Arthur Theoodore James (deceased) and two others v. Mrs.Hanna Rosaline and four others Arthur Theoodore James (deceased) and two others v. Mrs.Hanna Rosaline and four others Arthur Theoodore James (deceased) and two others v. Mrs.Hanna Rosaline and four others (1999)1 L.W. 222 . In the said case, the petitioner filed a contempt petition for punishing the respondent for committing civil contempt, by disobeying the final order passed in the second appeal and to pass orders. In the said contest, this Court, (S.S.Subramni, J.) has held that,” no case has been made out to punish the respondent therein for committing civil contempt, as this Court cannot be equated to an executing Court. In the said contest, this Court, (S.S.Subramni, J.) has held that,” no case has been made out to punish the respondent therein for committing civil contempt, as this Court cannot be equated to an executing Court. But, at the same time, the Court had observed, “But, merely because contempt application is not maintainable can this Court close its eyes when manifest injustice is shown to exist because of various acts and omissions committed by the respondents herein. Even though there may not be any act of contempt, when frivolous applications are filed one after another and thus, execution of a validly obtained decree is prevented, is it not abuse of process of Courte When this Court is informed that there is miscarriage of justice and there is an abuse of process of Court, it is not this Court duty bound to take note of the same and prevent the repetition of cause of processe Powers under Sec.151, C.P.C. and Art.227 of the Constitution of India are intended to prevent such acts……This Court can exercise its suo motu powers both under Sec.151, C.P.C. and under Art.227 of the Constitution of India to take necessary action…… If applications after applications are filed in order to prevent a successful decree holder from getting the fruits of the decree and the Court also supports such action by entertaining such applications, it will only mean that the Court is also impliedly perpetuating the abuse of process. If a Court does not prevent such abuse, it ceases to be a Court of law.” 23. After considering the decisions relied upon by both the parties and also after having heard the arguments of both sides in extenso, the admitted facts in this case are that the respondent/plaintiff obtained a valid decree though it was an ex parte decree and the said decree is subsisting, as the same has not yet been set aside, when the plaintiff filed an execution petition, the petitioners 1 to 4 have filed an application under Sec.47, C.P.C., questioning the validity of the decree and the same came to be dismissed, no doubt, for default. But, however, the petitioners therein filed an application to restore the same and the said application was also dismissed on merits. The petitioners have also filed another application to review the said order and the said review application was also dismissed. But, however, the petitioners therein filed an application to restore the same and the said application was also dismissed on merits. The petitioners have also filed another application to review the said order and the said review application was also dismissed. When all those applications have been dismissed, it cannot be stated that all those applications have been dismissed summarily without taking into consideration the rights of the parties. Though initially, the application filed by the petitioners was dismissed for default, the application filed by them for restoration of that application was dismissed, after taking into consideration the relative merits and defects of the parties and that therefore, the order passed therein is a valid order and therefore, it cannot be stated that the rights of the parties were not heard and finally decided, as contended by the learned Advocate for the revision petitioners. Though it would appear superfluously that the rights between the petitioners and the correspondent was not heard and decided and it was not adjudicated on merits, the very basic facts are that the decree passed is not set aside so far and hence, it has become final and the petitioners 1 to 4 spoke their nose by filing an application under Sec.47, C.P.C. and the same came to be dismissed. Further proceedings taken also ended against the petitioners and there is no change of circumstances at all, and therefore, the petitioners are at least estopped from questioning the validity of the decree. In fact, they should have exercised their right before the appropriate forum, when their petitions were dismissed, which they have not done. In that aspect of the case, the grievance of the petitioners cannot be held to be bona fide and the applications taken one after another are nothing short of abuse of process of law, and it has been held in Arthur Theoodore James (deceased) v. Mrs.Hanna Rosaline Arthur Theoodore James (deceased) v. Mrs.Hanna Rosaline Arthur Theoodore James (deceased) v. Mrs.Hanna Rosaline (1999)1 L.W. 222 and this Court cannot be a silent spectator for the said act. 24. 24. Moreover, the suit property is well defined in the execution petition and the location of the property, survey number and plot number were also given and the linear measurements were also given and the definite boundaries were all given and therefore, there is no question of any doubt in identifying the suit property and the respondent/plaintiff decree holder is entitled to take delivery in respect of the suit properties and the same cannot be prevented by the petitioners/defendants. 25. In the result, the civil revision petition is dismissed with costs. Consequently, connect V.C.M.P. and C.M.P. are also dismissed.