Varadaraja Iyengar, J.
1. This appeal is by the 6th defendant-respondent in S. A. 729 of 1953 on the file of this court.
2. The matter arises out of an objection filed by the appellant 6th defendant under Section 47, C. P. C., against the delivery in execution, of Items 1 to 4, to the respondent additional 3rd plaintiff. These items had been obtained assignment of by the 3rd plaintiff from the 2nd plaintiff original decree-holder-auction-purchaser. It was the case of the 6th defendant that he alone had advanced the purchase money in respect of the assignment and the 3rd plaintiff who had married his daughter since deceased, was a mere benamidar for him in die matter.
The 3rd plaintiff denied that he was a benamidar and further objected to the maintainability of the objection on various grounds. The executing 'court as well as the District Court in appeal by the 3rd plaintiff found concurrently in favour of the 6th dafendant on both aspects of benami and maintainability and refused delivery. In second appeal, by the 3rd plaintiff, however, Nanadam Menon J., held that the 6th defendant was debarred from maintaining his objection, in view to his quiescence-at earlier stage. Hence this appeal by tha 6th defendant and with leave therefor.
3. The 4 items in dispute along with two others, viz., 5 and 6 originally belonged to Ibrahim the ancestor of defendants 1 to 5. On foot of an encumbrance charging all the 6 items in his favour, the 5th defendant filed suit and obtained decree in O. S. 271 of 1108 against defendants 1 to 5 and in due course of execution, purchased them himself on 27-6-1109. He took delivery however of the present items 1 to 4 leaving the two other items to the defendants 1 to 5, in consideration of their undertaking to pay off the prior encumbrance in favour of the Original plaintiffs 1 and 2 in this suit. According to the 6th defendant, the 'failure of defendants 1 to 5 to fulfil their undertaking led to this suit and decree and with a view to safeguard his interests it was, that he got the 3rd plaintiff to purchase on his behalf, items 5 and 6 at the execution sale on 3-12-1115 and later on 15-4-1116, he obtained the assignment as regards the items 1 to 4.
4. At date of the assignment, of the items 1 to 4, the court sale in favour of the assignor 2nd plaintiff was yet unconfirmed in view of the pendency of petitions under Order XXI, Rule 87 corresponding to Order XXI, Rule 90 (Indian) filed by both defendants 1 to 5 and also the 6th defendant. So on 20-4-1116 a joint petition was filed as E. P. No. 419 of 1116 by the 2nd and 3rd plaintiffs for recognition of the assignment of items 1 to 4 or of the decree.
After notice on this application to the defendants 1 to 5 and also the 6th defendant and in the absence of any objection from them, the court on 29-4-1116 directed immediate impleading of the 3rd plaintiff, the office however to take further orders after the petitions under Order XXI, R. 87 were disposed of. These petitions were rejected and the court sales confirmed on 9-8-1116 but on the same day the E. P. No. 419 of 1116 was struck off.
On 13-10-1116, the 3rd plaintiff applied for delivery of items 5 and 6 alone as against defendants 1 to 5. Vide E. P. No. 817 of 1116. The 6th defendant to whom also notice was issued on this application did not appear or object. The defendants 1 and 5 raised certain objections but these were overruled and the 3rd plaintiff was placed in possession of items 5 and 6 on 3-4-1117. though he had to file a fresh E. P. on 30-2-1117 the prior E. P. 807 of 1116 having been rejected in the interval on 21-11-1116. It was about two years later on 5-8-1119 that the 3rd plaintiff started the present proceedings for delivery of items 1 to 4 and the 6th defendant came forward with his objections.
5. Now the respondent's contention in bar of the 6th defendant's objection was based upon the fact that long early on 29-4-1116 the 3rd plaintiff had after opportunity afforded to the 6th defendant to object if he desired, been recognised by the court as the assignee of the items concerned. This implied a decision of the court, now become final as against the 6th dafendant, or the validity of the assignment in favour of the 3rd plaintiff. The right to take steps in due course of execution for delivery from 6th defendant of the items 1 to 4 was only a necessary consequence and this he was not entitled to object at later stage as now. The question is whether this contention which found favour with Nandana Menon, J., is not acceptable.
6. Mr. K. P. Abraham appearing for the appellant urged before us to begin with, that assuming there was an implied decision upholding the assignment as contended for, it could not be final as between the 3rd plaintiff and the 6th defendant because they had ''colluded' to bring it about and it was open to the 6th defendant then to prove the real nature of the transaction and he referred to section 44 of the Evidence Act.
S. 44. 'Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.' This plea cannot, in our opinion, sustain. To avoid a plea of res judicata a judgment or an order or a decree can under the section, no doubt be shown to be obtained by fraud or collusion. But it will not be open to a party to plead his own collusion for the purpose. The expression 'any party to a suit or other proceeding occurring in the section must be given a restricted meaning and must be limited to a person or persons other than the one who asserts the fraud or collusion. As observed by Sulaiman, J., as he then was, in Sahib Rai v. Bahari Rai, AIR 1927 All 494,
'A third party can undoubtedly avoid a decree on the ground that it has been obtained collusively, but a party to a collusive decree cannot avoid it on that ground.'
For as the teamed Judge went on to point Out,
'If parties to a decree Or their representatives were allowed to nullify a decree by pleading then own fraud or collusion the result would be disastrous and would open a wide door for urging false and convenient pleas.'
7. But the question still is, whether the implied decision as to the validity of the assignment as against the 6th defendant involved also a decision against a plea in bar of delivery at his instance. According to Mr. Abraham it is difficult to conceive a decision by implication of this kind in this case. For no such plea had been raised at any stage before the present application for execution, and such plea did not also arise until then. We think this argument is entitled to succeed.
At the time when the third plaintiff along with the 2nd plaintiff applied to court for recognising the assignment, the position as we saw was one of uncertainty as to whether the court sale of items 1 to 4 may at all the confirmed. So the prayer in the application was definitely worded in the alternative so as to allow a recovery of the properties or of the decree amount depending upon the confirmation of the sale or otherwise. And consistently, the court while ordering impleadment of the 3rd plaintiff as assignee-decree-holder nevertheless reserved further consideration of the application, obviously from the point of view of delivery of the properties until after the sale stood actually confirmed.
The order for impleading could not therefore be said to involve by implication a decision as to the enforceability of the assignment in the matter of delivery of the properties covered thereby. It was only when the petitions under Order XXI, Rule 87 were dismissed that the enforcement of the sale sannad rights regarding the items 1 to 4 could fall to be considered but, as, it happened, no such consideration took place because the execution application was itself simultaneously struck off.
The extension of the principle of constructive res judicata to matters in execution must be cautiously undertaken particularly when the principle rests upon Explanation IV to Section 11, C. P. C., that is, it relates to a matter which might and ought to have been urged so that it may he deemed to have been a matter directly and substantially in issue in such proceedings. The actual decision cannot also be carried further than the circumstances warrant.
The matter must have been put in issue and only then the precise point so put and solemnly judged against the party is deemed to be finally decided. We must be able to say from the court's order that it was conscious of the question and intended to decide it against the judgment-debtor for, every interlocutory order in furtherance of the execution proceedings cannot imply a conscious, adjudication of the question.
In the face of the specific order passed at the time of the recognition of the assignment, it is perfectly clear the court did not give any decision, as between the 3rd plaintiff and the 6th defendant concerning the enforcement of the sannad right by further process in execution. The later order for delivery to the 3rd plaintiff of items 5 and 6, after notice to the 6th defendant relied on by the learned Judge and also pressed before us is of no significance in the present matter. Those items he had bid for directly and had nothing to do with the assignment.
8. We may refer in tin's connection to the observation in Saralabala Devi v. Shyam Prosad, AIR 1953 Cal, 765.
''It is undoubtedly true that the principles of res judicata apply to proceedings other than suits including proceedings in execution. It must be taken, as held by the Supreme Court, that the principles of constructive res judicata are also applicable to execution proceedings. But the conditions of applicability of the principles of res judicata actual or constructive contained in Section 11 Civil P.O. must be complied with in such cases as far as possible. It is not the law that when a Court applies the principles analogous to res judicata, that Court can override the conditions specified in Section 11 Civil P.C. These conditions must be fulfilled as far as possible: See -- Abinash Chandra v. Madhusudan Majumdar, AIR 1952 Cal. 673. One of the explanations appended to Section 11 is Explanation IV. Explanation IV requires that a matter should be regarded as constructively in issue if such a matter might or ought to have been raised in the suit or the proceedings'.
We hold therefore that the 6th defendant is not precluded from objecting as here, to the delivery from him, of items 1 to 4. In the light of the conclusion readied by us as to the construction of the order relied on by the respondent, we have found it unnecessary to deal with the large number of cases referred to by either side.
9. The appeal succeeds in the result and werestore the order of executing court disallowing theapplication of the 3rd plaintiff. The appellant will-get his costs of this appeal and of the second appeal in this court from the respondent.