Thomas Fredrick Dawson Miller, C.J.

1. This is an appeal on behalf of the defendant No. 1 from a decision of Mr. Justice Ross dated the 27th of May last year. The plaintiffs are the proprietors of a plot of land measuring 2 bighas 2 dhurs of which the defendant No. 2 and apparently the defendant No. 3, for there is some doubt about it, where the tenants or at all events the defendant No. 2 was the original tenant January 1914. The tenants sold the to the defendant No. 1 under a kebala but it appears from the terms of that kebala that the whole holding less 12 kanvas alone was sold under that kebala. The purchaser therefore was not the transferee of the whole holding but transferee of a portion of the holding. Before the date of this transaction namely on the 18th of September 1913, the plaintiff as landlords obtained a decree for rent against the Defendant No. 1's vendors or their predecessor-in-title or at all events against the existing tenant at that time and on the 16th April 1914, the land was put up to sale execution of that decree and purchased by the plaintiff. The decree obtained by the landlord for some reason which has not been explained was treated as a money decree only, but nevertheless the land was sold and purchased by the landed who on the 4th August the same year actually got delivery of possession of the land. Subsequently the defendant No. 1 Pirthi Mahto, the transferee, took proceedings under Order 21, rule 90, C.P.C. for setting aside the sale and he produced his kebala under which he purchased the land support of his application to shew that he had an interest the land. Now I pause here for a moment to point out that the interest asserted by the defendant No. 1 at the time of his application under Order 21, rule 90 was an interest in a portion of the holding only, and therefore, so far as the plaintiff was concerned, there appears to have been no reason why he should take the point that the holding was non-transferable because even if he succeeded proving the point nevertheless a transfer of portion only of the holding would be binding as against him provided that the original holder or occupier had not abandoned possession of the whole holding. Eventually the application of the defendant No. 1 under Order 21, rule 90, proved successful and the Sale was ordered to be set aside. He however had some difficulty getting possession and further proceedings were taken first under Section 144, Cr. P. C and subsequently under Order 21, rule 101: but it would appear that although the defendant No. 1 had been possession at some time between the date of his kebala September 1913 and August the following year when the plaintiff got possession by fin order of the Court, still from the latter date up to the time of this suit it seems, although it is not absolutely clear from the judgments, that the plaintiffs themselves had been possession of this land. Indeed the plaint amongst other things the plaintiffs prayed for confirmation of their possession and that fact is one of the reliefs granted by the learned Munsif which was affirmed both by the Lower Appellate Court and by the Judge of this Court. I mention this because one portion of the Munsif's judgment it would appear that he found upon the evidence of the plaintiffs' witnesses that the defendants were fact possession of the whole holding. It seems, however, that arriving at that finding what he really was discussing was the original possession of the defendants up to sometime August 1914.

2. The plaintiffs claimed that possession of the property suit may be confirmed and that a perpetual injunction may be issued upon the defendant 1st party restraining him from getting possession over the property suit or from recovering mesne profits and further asked for that relief after finding that there was no custom of transferability the mouzah which the property is situated and that the original tenants had fact abandoned the property suit.

3. Various defences were raised the suit, and amongst others it was contended that the suit was barred by reason of the provisions of Section 11 read the light of the fourth explanation to that Section of the Civil Procedure Code. It was contended that the question of non-transferability which if established would put an end to the defendants' claim could not now be raised because the proceedings under Order 21, rule 90, either no such point had been taken by the landlord, or if it had not been taken then it could not be taken now because it might have been taken then. It was therefore contended that the present suit was barred by res judicata. The Munsif with regard to this question came to the conclusion that the point had really never been taken at all or decided by the execution court the proceedings under rule 90 of Order 21 and therefore held that the point not having been raised or decided, there was no bar to the plaintiff's raising the point now. He did not deal terms with the fourth explanation to Section 11 but possibly he had mind the result of certain cases which have been decided both Madras and Allahabad, where it has been laid down that whatever may be the extent to which an analogous doctrine to that laid down Section 11may be applied execution cases, still the explanation as for example explanation 4 and explanation 5 can have no application to proceedings of that nature so as to bar the plaintiffs in a subsequent suit from raising points which have not been determined the previous execution proceedings. When the matter came before the District Judge, although a question was raised based upon the doctrine of estoppel, no question was raised as far as appears from the learned Judge's Judgment upon the point which has now been argued before us this appeal, and there is nothing to show that the point fact was taken before the learned District Judge. Had it been taken it would have been open to the appellant before us to day to bring some evidence or some proof that the point had fact been argued and that the learned Judge omitted to deal with it. But it would appear on reading the judgment of the learned District Judge that the point was never taken and therefore one must assume that it was abandoned. Now when the matter came before the Judge of this Court that point, which I may say is the only point which has been argued before us to-day, and other points were urged. The learned Judge dismissed the appeal and dealing with the point I have just referred to, he pointed out that it should not succeed because for obvious reasons it had not been taken before the learned District Judge, and therefore the appellant ought not to be allowed to revive it appeal before him. With that part of the learned Judge's judgment I entirely concur and that itself would be sufficient to lead us to dismiss this appeal. I further think, however, that although the doctrine laid down Section 11 of the Civil Procedure Code relating to res judicata may be applied and rightly applied certain proceedings execution arising out of the same judgment so as to put an end to litigation and may possibly be applied certain cases where separate suits have been brought raising points which have already been decided execution cases fought between the same parties, still I do not think that the special rules laid down the explanation to that section which go beyond the ordinary doctrine of res judicata ought to be applied generally execution cases. The High Court of Allahabad the case of Kalyan Singh v. Jagan Prasad (1915) 37 All. 589=30 I. C. 523=13 A.L.J. 828 held that "if a judgment-debtor does not take exception the amount erroneously set for than application for the execution of a decree as being the sum due, he is not prevented by the principle of res judicata from doing so on a subsequent application for the execution of the same decree". It was argued that case that by reason of explanation 4 to Section 11 of the Code the judgment-debtor not having taken the point the first application for execution of his decree was barred from taking the point a subsequent application. The Court who delivered the judgment that case consisting of the Chief Justice and Mr. Justice Rafiq refused to accept this contention and refused to apply the principle laid down explanation 4 to Section 11 to cases of that nature. Again Madras the case of Nityananda Gantayet v. Gajapati Vasudeva Devu (1901) 24 Mad. 681=11 M.L.J. 343 the Court refused to apply the law of res judicata as laid down explanation 3 of Section 13 of the Code of 1882 which is now explanation 5 of the present Code to a case where the plaintiff had been awarded by a decree possession of land together with mesne profits and applied execution for delivery of the land and for mesne profits but was not awarded mesne profits by the executing Court fact that Court made no reference to it in its decision and when the plaintiffs subsequently applied for mesne profits they were met with the objection arising under what is now explanation 5 of Section 11, and the Madras High Court refused to entertain the argument based upon that explanation such a case. I see no reason to differ from the principles laid down those cases and therefore on this ground also. I think that this appeal should be dismissed. The respondents are entitled to their costs of this appeal.

4. L.C. Adami, J.

5. I agree.