Chandrasekhara Aiyar, J.
1. The wife, who was the petitioner in the trial Court and respondent in the District Court, has preferred this appeal against the order of remand in a matter relating to the execution of a decree for maintenance that she had obtained.
2. When she sought to execute the decree, she was met by an objection from the husband that, as they resumed co-habitation after the decree, the decree had become ineffective and that it was unexecutable. The District Munsiff overruled the defendant's objection and allowed execution to proceed. He held that the husband was barred by res judicata from setting up any contention to the effect that the decree had ceased to be effective and he based this finding on the fact that, in a prior execution petition filed by the wife, when notice went to the husband under Order 21, Rule 22 of the Code of Civil Procedure, he did not come forward with any such objection and execution was proceeded with by attachment of certain properties in respect of which the defendant's son (illegitimate.) came forward with a claim which was dismissed and which order was confirmed by the appellate Court on the ground that no appeal lay. In the appellate order then made, the District Judge made an observation that the decree did not appear to be an executable one. When the respondent took hold of this observation and pressed it into service against the wife, stating that it was res judicata against her, the District Munsiff as well as the District Judge on appeal held that it was not because it was only an obiter dictum which was not necessary for the disposal of the case which was determined on the ground that no appeal lay.
3. The learned District Judge on appeal preferred by the husband against the District Munsiff's order has taken the view that, as it might be that the failure of the husband to raise the contention that he is now putting forward may have been due to one or more of several reasons, it was the duty of the District Munsiff to dispose of the matter after taking evidence with regard to the period of the cohabitation and the circumstances under which the respondent failed on the prior occasion to raise this question that the decree was not executable.
4. The view taken by the learned District Judge cannot be supported. The resumption of co-habitation was before the prior execution petition was filed. It was therefore the obvious duty of the husband to have raised the objection to the execution of the decree on that occasion. When he did not do so, for whatever reason it might be, the question must be deemed to have been considered and decided against him with the consequence that the principle of res judicata will apply. Mr. Vasudevan, the learned advocate for the respondent, urged that the doctrine of constructive res judicata will apply only to a case where the decree can be said to be in force and objection to its executability was not raised in execution proceedings and not to a case like this, where owing to subsequent resumption of co-habitation, the decree itself had ceased to be effective or operative as was held in Venkqyya v. Raghavamma (1940) 2 M.L.J. 263. This argument, however, amounts to making a distinction without a difference. It is not a case of a void decree. It was right when it was passed and all that the defendant could urge against it, if subsequent co-habitation had been resumed, is that it had ceased to be operative or effective. This question might and ought to have been raised by him then. He did not do so and he cannot be permitted to agitate it now. If, as the learned District Judge says, he thought the illegitimate son had taken up the question for fighting it out with the wife, it is only appropriate that he should be content with the result of the son's act or objection. It is difficult to see how this case is different from a case where the decree does not award a particular relief and yet, after an execution petition is filed seeking that relief without any objection raised by the defendant, it has been held that he is barred by res judicata from contending that there is no decree for that relief. If one can venture on surmises as to why the husband remained silent on the previous occasion and raised no objection, it may be that he thought that as a new situation had arisen after the resumption of co-habitation under which he would have had to pay maintenance, he did not think it worth his while to insist upon a separate suit being filed with the possibility, nay probability, of having to meet the costs of that litigation. But really there is no need for any such speculation. The doctrine of res judicata which is a branch of the law of estoppel, clearly applies and prevents the husband from raising the contention that he has now put forward. The order of the lower appellate Court is set aside and that of the District Munsiff restored with costs payable by the respondent to the appellant here and in the Court below.