Subramania Ayyar And Six Ors. vs Raja Rajeswara Dorai Alias ... on 22 December, 1916
4. In order to determine as to whether the decree could be executed at the instance of Annada and whether the execution of the decree could proceed it was essential to consider whether Annada had any locus standi to maintain the application for execution. The lower appellate Court seems to think that the principle of constructive res judicata or rather the principle analogous to the principle of constructive res judicata has no application to execution proceedings. It seems to us that that is not a correct view to take. The tendency of the recent decisions is to hold that where the effect of the decision is that the application for execution is held as maintainable it has the effect of deciding that the person at whose instance the application is held maintainable has a right to maintain it, although there are no doubt some observations in some of the decisions in the Madras Court to the effect that Expl. (5), Section 11 of the Code or the principle embodied therein has no application to orders made in the course of execution: see the case of Sulramania Ayyar v. Raja Rajeswara Dorai AIR, 1918 Mad 1167, where the observations are really obiter and it does not seem on principle that any distinction should be made in this respect between suits and execution proceedings. We are therefore of opinion that the first contention is sound and must prevail.