IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 461 OF 2008 SHRI. VINOD VILAS KENAUDEKAR AND 3 ORS., ... Petitioners Versus SHRI. HARISH ALIAS SHRIKRISHNA KENAUDEKAR AND 3 ORS., ... Respondents Mr. J. P. Mulgaonkar, Advocate for the Petitioners. Coram:- N. A. BRITTO, J. Date:- 7th August, 2008 P.C. Heard. Shri Mulgaonkar, Learned Counsel on behalf of the petitioners. The petitioners are judgment debtors in Execution Proceedings no.46/2003. By the impugned Order 23.6.2008 the learned Civil Judge, Senior Division has rejected an application filed by the petitioners, as judgment-debtors, with a prayer which reads as follows: "It is prayed that Court be pleased to refer the issue of Mundcarship to Mamlatdar and stay the proceedings." 2. Apparently, the execution proceedings for the execution of the petitioners as judgment-debtors were filed in the year 2003 and the judgment- debtor on or about 10.2.2004 filed their objections to the execution application. The said objections were disposed off by the learned executing Court on 10.10.2006, against which an appeal was preferred to the District Court and thereafter second appeal to this Court bearing No.73/2007 which came to be disposed off by judgment dated 27.9.2007. 3. The learned executing Court in para 7 of the impugned Order has stated that the stage for objections is over and no further objections would be allowed. The learned executing Court has further observed that no issue arises of mundkarship arises when the claim is made of being a co-owner, and, therefore the application has to be dismissed on that count alone. The learned executing Court also obeserved that the judgment-debtors were trying to stave of the execution of the decree. Earlier they had taken objections to the execution and at that time they had taken a plea that they were co-owners and they had co-ownership right in the property which they had been ordered to vacate and even at the trial stage, the same stand was taken which had been rejected by the Court. The learned executing Court has also noted that the judgment debtors have their own house at Bastora allotted to them under 20 point programme. 4. Learned Counsel on behalf of the petitioners submits that the petitioners were mundkars but since they could not take this plea at the time of objections were filed it was taken subsequently. In my view such a submission cannot be accepted. All objections to an execution are required to be taken in one go, if I may use that expression. They cannot be allowed to be taken piecemeal one after another. If such a course is allowed than execution proceedings will not come to an end before eternity. The objection now taken is deemed to have been taken and decided by the Court by Order dated 10.10.2006. This Court in Writ Petition No.403 of 2008 has observed thus: "Admittedly, the objections filed by the judgment-debtor to the execution of the decree were disposed of by the Order of the executing Court dated 20.11.1995 and subsequently warrant of possession was issued on 28.1.1995. In other words the objections now taken could have been taken in the reply/objections filed on 17.2.1995. Could a Judgment-Debtor be allowed to take objections piecemeal and then allowed to file appeals, revisions, writs? If such a course is adopted will an execution application come to an end before eternity? In order to overcome such situations that we follow the principle of constructive res judicata which is embodied in Section 11, Explanation 4, C.P.C. and which provides that any matter which might or ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In other words an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The doctrine underlying Explanation IV is that the parties having had an opportunity of controverting the matter that should be taken to be the same thing as if the mater had been actually controverted and decided. In other words the objections now being taken are deemed to have been heard and decided and this principle applies even to the different stages of the same proceedings. In this context the observations of this Court in Ushadevi Balwant V/s Devidas Shridhar (supra) are apt, relevant and binding. "It is well settled that Section 11, C.P.C. is not exhaustive and the principle of res judicata applies to proceedings other than suits" ... "It is equally well settled that the principle of res judicata applies to execution proceeding." ..." "and where at a particualr stage of execution proceedings a contention that a Decree is a nullity because the Court had no jurisdiction, is not raised, that contention cannot be raised later at the same stage of execution proceedings. Chief Justice Chagla (as His Lordship then was) had noticed more than half century back that it was notorious how long and wearily execution proceedings are dragged on, and if the Court refuses to give effect to this principle of res judicata it will be open to the J.D. to raise issue of jurisdiction at any stage of execution proceedings realizing that the other objections he had taken had failed. The position has certainly worsened down the years and when it comes to execution of Decrees particularly as regards possession of immovable properties the Decree Holders are driven to frustration and exasperation. This is precisely the case at hand. The learned Single Judge of Rajasthan High Court in Smt.Pushpa V/s Ganpatsingh and others (supra) after taking note of the pronouncements of the Apex Court in Mohanlal Goenka V/s Benoy Kishna Mukherjee and others (AIR 1953 SC 65), of this Court in Ushadevi Balwant V/s Devidas Shridhar (supra) and Prem Lata Agarwal V/s Lakshman Prasad Gupta and others (AIR 1970 SC 1525) has concluded that "the position of law which emerges is that the judgment-debtor if he so desires must raise all objections to the executability of the decree which are available to him at one and the same time at appropriate stage and if he does not do so he is precluded from raising fresh objection in a piece-meal manner at a subsequent stage even in the same execution proceedings." I have my respectful agreement with the above proposition of law, and therefore, on the principle of constructive res judicata, the J.D. could not be allowed to raise fresh objections by their reply dated 29.9.2007, all his objections to the execution deemed to have been taken and decided by the executing Court by Order dated 20.11.1995 nor they can be allowed to be taken for the first time in this Writ Petition. It is interesting to note that the J.D. could have pressed for the said objections at the time the Executing Court decided the issue of jurisdiction, in case the J.D. was serious about the same. It is obvious that the J.D. was only taking chances to delay the proceeding." 5. In view of the above, this is not a fit case to exercise extraordinary jurisdiction. 6. Petition is therefore dismissed. N. A. BRITTO, J. cg