vil Appeal No 139 of 1951
Appeal from the Judgment and Decree dated February 10 1960 of the High Court of I Judicature at Calcutta Harries CJ and Sarkar J in Appeal from Original Order No 95 of 1945 arising out of Judgment and Order dated January 30 1945 of the Court of Subordinate Judge at Asansol of Zilla Burdwan in Miscellaneous Case No 70 of 1941
N C Chatterjee B C Boy and A E Mukherjea with him for the appellant
Dr N C Sen Gupta B L Pal with him for res pondent No I 379 1962
December 9
Das J and Ghulam Hassan J delivered separate judgments
The judgment of Mahajan J and Vivian Bose J was delivered by MAHAJAN J MAHAJAN J
In our opinions the decision can be rested on either of the ground which have been raised by our brothers Das and Ghulam Hasan respectively
We would therefore allow the appeal on both the grounds
DAS J I have had the privilege of perusing the judgment delivered by my learned brother Hasan and I agree with his conclusion that this appeal should be allowed
I would however prefer to rest my decision on a ground different from that which has commended itself to my learned brother and as to which I do not wish to express any opinion on this occasion
The relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J and I need not set them out in detail here
Suffice it to say that on June 12 1931 the High Court Original Side which is the Court which had passed the decree transmitted the same for execution to the Asansol Court through the District Judge of Burdwan and that the Asansol Court thereupon acquired jurisdiction to execute the decree against properties situate within its territorial limits
The application for execution made by the decree holder which was numbered 296 of 1931 was however on February 27 1932dismissed for default and on March 11 1932 the Asansol Court sent to the High Court what in form purported to be a certificate under section 41 of the Code
There is no dispute however that the Asansol Court did not return to the High Court the certified copy  of the decree and other documents which had been previously transmitted by the High Court The decree holder on November24 1932 filed in the Asansol Court another petition for 380 execution of the decree against the same judgment debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case
The application was registered as Execution Case No 224 of 1932
The judgment debtors  contention is that the certificate sent by the Asansol Court to the High Court on March 11 1932 was and was intended to be in form as well as in substance a certificate under section 41 of the Code and that thereafter the Asansol Court ceased to have jurisdiction as the executing Court and that as there was no fresh transmission of the decree by the High Court the Asansol court could not entertain Execution Case No 224 of 1932 and consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court
This contention was rejected by the Subordinate Judge of the Asansol Court in his judgment delivered on January 30 1945 in Miscellaneous Case No 70 of 1941 but found favour with the High Court in its judgment delivered on February 10 1950 which is now under appeal before us
It appears that on
March 171933 the decreeholder took out a Master s summons in the Original Side of the High Court being the Court which passed the decree in Suit No 1518 of 1923 praying interalia that the Official Receiver be discharged from further acting as Receiver in execution that leave be given to the Asansol Court to sell the colliery in execution of the decree dated June 25 1923 and the order dated February 7 1924 and that leave be given to the plaintiff to bid for and purchase the Sripur colliery
This summons was supported by an affidavit affirmed by one Pramatha Nath Roy Chowdhury an assistant in the employ of the plaintiff
This affidavit refers to the consent decree of January 25 1923 passed in the said suit and the additional terms of settlement embodied in the order of February 7 1924 the payments made by the judgment debtors from time to time amounting to 381 Rs 30437 8 0 besides a sum of Rs 3500 which bad been paid on account of settled costs and states that the balance of the decretal amount was still due and that there had been no other adjustment of the decree
It refers to a previous application by tabular statement for execution of the decree by the appointment of a Receiver and by the sale of the Sripur colliery which was charged under the order of February 7 1924 and to the order made by the High  Court on that tabular statement on June 21 1926 appointing the Official Receiver of the High Court as Receiver of the Sripur colliery
The affidavit then recites that the Official Receiver who had been given liberty to sell the colliery on certain terms took steps to put up the same to sale but had been prevented from actually doing so by reason of an injunction obtained by one of the judgment debtors Benoy Krishna Mukherjee in Suit No 843 of 1928 filed by him
The affidavit further refers to the fact that the said Suit No 843 of 1928 had since then been dismissed and that no appeal had been preferred against that decree of dismissal and that no order had been made for stay of execution of the said decree
Paragraph 13 of the affidavit then states as follows   that the plaintiff was advised that charge should be enforced and Sripur colliery should be sold in execution of the said order by the Asansol Court in the local jurisdiction of which the colliery is situate and the plaintiff accordingly by an order made on the 15th of April 1931 obtained leave of the Court to execute the decree against Basantidas Chatterjee Srimantodas Chatterjee and Bholanath Chatterjee as sons heirs and legal representatives of the deceased Prankristo Chatterjee and the other defendants judgment debtors and caused the certified copies of the decree dated 25th June 1923 and the order dated 7th February 1924 to be transmitted to the District Judge at Burdwan who in his turn sent the decree to the Subordinate Judge of Asansol to execute the decree
Such execution proceedings are 382 now pending before the Asansol Subordinate Judge s Court being Execution Proceedings No224 of 1932
 In the circumstances the plaintiffs asked for directions on the lines mentioned in the summons
The summons was duly served on all the judgment debtors as mentioned in the affidavit of service filed in Court and referred to in the order made by the Court on the Master s summons on March 27 1933
The operative part of the said order of the High Court was as follows  It is ordered that Official Receiver of this Court who was appointed the Receiver in this suit of the Sripur colliery pursuant to the said order dated the 21st day of June 1926 be and he is hereby discharged from further acting as such Receiver as aforesaid And it is further ordered that the said Receiver do pass his final accounts before one of the Judges of this Court and it is further ordered that the Subordinate Judge of Asansol be at liberty in execution of the said decree and order dated the 7th day of February 1924 to sell either by public auction or by private treaty to the best purchaser or purchasers that can be got for the same provided the said Subordinate Judge shall consider that a sufficient sum has been offered the Sripur colliery aforesaid charged under the said order dated the 7th day of February 1924 And it is further ordered that the plaintiff be at liberty to bid for and purchase the said colliery at the said sale and if declared the purchaser to set off the amount of the purchase money pro tanto against the balance of his claim under the said decree And it is further ordered that the plaintiff be also at liberty to add his costs of and incidental to this application to be taxed by the Taxing Officer of this Court to his claim under the said decree
 The order sheet of Execution Case No 224 of 1932 has not been printed in extenso but there can be no doubt that this order of the High Court was communicated to the Asansol Court for it was after this order 383 that the Asansol Court proceeded with the execution 2case and sripur colliery was sold for the first time on June 9 1933 and the decree holder purchased the same for Rs 20000
This sale of course was eventually set aside but this order made by the High Court on the Original Side being the Court which passed the decree in Suit No 1518 of 1923 appears to me to involve and imply and may well be regarded as in substance amounting to an order for transmission of the decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure
The Civil Procedure Code does not prescribe arty particular form for an application for transmission of a decree under section 39
Under sub section 2 of that section the Court can even suo motu send the decree for execution to another Court
It is true that Order XXI rule 6 provides that the Court sending a decree for execution shall send a copy of the decree a certifi cate setting forth that satisfaction of the decree hid not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the  Court executing the decree the certificate referred to in clause b does not prevent the decree holder from applying for execution to the Court to which the decree has been transmitted
Such omission does not amount to a material irregularity within the meaning of Order XXI rule 90 and as such cannot be made a ground for setting aside a sale in execution
Further the fact remains that the certified copy of the decree and the certificate of non satisfaction which had been sent by the High Court 2to the Asansol Court on April 15 1931 through the District Judge of Burdwan who forwarded the same to the Subordinate Judge at Asansol were still lying on the records of that Court and the sending of another certified copy of the decree and a fresh certificate of non satisfaction by the High Court would have been nothing more than a formality
In the circumstances the omission to send those documents 384 over again to the Asansol Court was a mere irregularity which did not affect the question of jurisdiction of the executing Court
In my opinion after the order made by the High Court on March 27 1933 had been communicated to the Asansol Court the Asansol
Court became fully seized of jurisdiction as the executing Court and none of the proceedings had thereafter in that Court can be questioned for lack of inherent jurisdiction
I would therefore on this ground alone accept this appeal and concur in the order proposed by my learned brother
GHULAM HASAN J
This case is illustrative of the difficulties which a decree holder has to encounter in recovering the money in execution after he has obtained the decree of court
It is one of those cases by no means rare in which the execution proceedings in the courts below have dragged on to inordinate lengths and led to consequent waste of public time and expense to the parties
The decree in the present case was passed upon a compromise in Suit No 1518 of 1923 on the original side of the Calcutta High Court as long ago as June 25 1923 in favour of one Nagarmull Rajghoria against Pran Krishna Chatterjee and 5 others hereinafter referred to as the Chatterjees
The decree was for a sum of Rs 75000 with interest at twelve per cent
per annum with quarterly rests
The Chatterjees hypothecated their Kbradauga colliery as security for the payment of the decretal amount
Subsequent to this decree the Chatterjees entered into an agreement With one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24 1924 appointing the latter as Managing Agent of the aforesaid colliery whereby he became entitled to receive royalty of another colliery called Sripur colliery
The decree was adjusted on March 18 1924 by making Mukherjee liable as surety and by the Chatterjees charging their Sripur colliery as additional security
The hypothecated properties were situate at Asansol and 50 385 Nagarmull obtained an order from the High Court for permission to execute the decree at Asansol with the direction that a certified copy of the decree a copy of the order of transmission and a certificate of partial satisfaction of the decree should be transferred to the court of the Subordinate Judge at Asansol  This order was passed on April 15 1931 and the three documents aforementioned were sent to the transferee court at Asansol through the District Judge Burdwan on June 12 1931
Order XXI rule 6 Civil Procedure code On August 20 1931 Nagarmull filed his first appli cation for execution of the decree by sale of Sripur colliery
The execution case is numbered as 296 of 1931
Notices under Order XXI rule 22 rule 64 and rule 66 of the Civil Procedure Code were issued and served on various dates
The case was fixed for February 16 1932
On this date Nagarmull applied for time to prove service of the notices and the case was adjourned to February 23 1932
He again applied for time on that date and the case was adjourned to February 27 1932
On this latter date Nagarmull was again not ready and asked for more time
But this was refused and the execution case was dismissed for default without any amount being realized under the decree
The transferee court sent to the High Court what purported to be a certificate under section 41 of the Civil Procedure Code stating that the execution case was dismissed for default on February 27 1932
Neither the copy of the decree nor any covering letter as required by the rules of the High Court was sent along with the certificate
The certificate was received by the High Court on March 11 1932
It appears that the decree holder filed a second application for execution of the decree on November 24 1932 by sale of the Sripur colliery
This case was numbered as Execution Case 224 of 1932
Notices under Order XXI rule 22 and rule 66 of the Civil Procedure Code were duly served and the executing court ordered the issue of a sale proclamation fixing April 8 1933 as the date of the sale It 386 appears that the decree holder received only partial satisfaction of the decree out of the sale proceeds of Koradanga colliery which had been sold at the instance of the superior landlords and by certain cash payments
He applied for execution of the decree by appointment of a Receiver and by sale of the Sripur colliery
The Receiver was appointed on June 21 1926 and he was directed to sell the Sripur colliery to the highest bidder permitting the decree holder at the same time to bid for and purchase the property but he was restrained from proceeding with the sale by an order of court passed in a certain suit filed by Mukherjeo against the decree holder
This suit was dismissed by the High Court
Accordingly the
decree holder applied on March 17 1933 to the High Court praying that the Receiver be discharged and leave be given to the executing court to sell the Sripur colliery in execution of the decree of June 25 1923 in which Execution Proceedings No 224 of 1 932 were pending at the time
He also asked that leave be given to him to bid for and to purchase the property
Notices of this application were duly served on the parties and on March 27 1933 the High Court granted all the  prayers Exhibit F 5
The property was sold on the 9th of June 1933 and was purchased by the decree holder for Rs 20000
Mukherjee however filed an application on July 7 1933 under section 47 and Order XXI rule 90 of the Civil Procedure Code for setting aside the sale
The application was numbered as Miscellaneous Case No 63 of 1933
The Chatterjees also started two Miscellaneous Cases Nos 64 and 55 of 1933 on July 8 1933
During the pendency of the three miscellaneous cases the appellant Mohanlal Goenka purchased the decree on January 10 1934
Miscellaneous Case No 53 of 1933 was allowed and the sale was set aside on January 29 1934 and Cases Nos 54 and 55 of 1933 were dismissed for default
The result of these miscellaneous cases was communicated to the High Court in a document which purports to be a certificate under section 41 of the 387 Civil Procedure Code and wag received on February 1 1934
Two appeals were preferred by the decreeholder on April 18 1934 but the order setting aside the gale was confirmed and resale of the Sripur properties was ordered by the High Court
The properties were again sold on April 22 1936 and were purchased by the decree holder for Rs 12000
Mukherjee filed an appeal in the High Court and during the pendency of the appeal he filed an application under section 47 and Order XXI rule 90 of the Civil Procedure Code for setting aside the sale
The appeal was disposed of by consent of parties and it was agreed that the application under Order XXI rule 90 be heard by the executing court
Accordingly the application was heard and the sale set aside
Mukherjee then applied under section 47 on April 4 1938 stating that Mohanlal Goenka could not continue the proceedings started by Nagarmull but the application was dismissed and May 22 1938 was fixed for the sale of the property
He filed an appeal in the High Court which was dismissed under Order XLI rule II of the Civil Procedure Code
The property was sold for the third time and was purchased by the decree holder for Rs 260000 on May 27 1938
Mukherjee applied under section 47 and Order XXI rule 90 of the Civil Procedure Code for setting aside this sale on June 27 1938  E 4 Miscellaneous Case No  76 of 1938
The application was dismissed on June 30 1938 and the sale was confirmed
Execution Case No 224 of 1932 was dismissed for part satisfaction
The executing court on July 9 1938 sent to the High Court a certificate under section 41 of the Civil Procedure Code accompanied with the covering letter communicating the result of the execution case
This was received by the High Court on July 12 1938
Mukherjee carried the matter in appeal to the High Court but the appeal was dismissed on August 5 1940 Exhibit F
Mukherjee filed an application for review under Order XLVII rule 1 of the Civil Procedure Code against
the aforesaid order on November 25 1940 388 Exhibit B
He also
filed on November 28 19407 an application for leave to appeal to the Privy Council Exhibit A
The review application was dismissed on May 81941 and leave was refused on June 16 1941
On May 12 1941 Mukherjee filed an application under sections 47 and 151 of the Civil Procedure Code Miscellaneous Case No 70 of 1941 and it is this application which has given rise to the present appeal before us
The application was supported by an affidavit filed on may 26 1941
The present appellant filed an objection on July 5 1941 to the application
The application was dismissed by the Subordinate Judge on January 30 1945 but the order was set aside on appeal by the High Court on February 10 1950
Leave to appeal to this Court was granted by the  High Court on July 28 1950
The case put forward by Mukherjee before the Subordinate Judge was that after the dismissal of Execution Case No 296 of 1931 on Februarv 27 1932 and the sending of a certificate under section 41 to the High Court the decree was never again transferred to the Asansol court for execution
According to him the decree holder fraudulently detached the certificate of non satisfaction from the Execution Case No 296 of 1931 and attached it to the second Execution Case No 224 of 1932 inducing the court to believe that the certificate had been obtained from the High Court for taking fresh proceedings in execution Mukherjee had instituted Title Suit No  3 of 1936 to recover some money and to enforce a charge against the Sripur colliery and for permission to redeem the charge declared in favour of the decree holder if it was prior to his own claim  The suit was dismissed but on appeal the High Court allowed him to redeem the charge in favour of the decree holder
In order to ascertain the amount of the charge Mukherjee instructed his attorney to search the record of Suit No 1518 of of 1923 and he came to know for the first time on August 23 1940 that after the dismissal of the first 389 application  certifioate under section 41 of the Civil Procedure Code had been sent by the Asansol Court to the High Court and the latter never retransferred the decree for execution
Accordingly his case was that the Asansol Court had no jurisdiction to entertain Execution Case No 224 of 1932 and all the proceedings in connection therewith were null and void
 He therefore urged that the auction sale should be set aside
The present appellant denied the allegations of the judgment debtor
He pleaded that no certificate under section 41 of the Civil Procedure Code was sent to the High Court in Execution Case No 296 of 1931 and the execution court retained jurisdiction throughout that the High Court had authorised the sale of the property in execution of the decree and that no fresh certificate of non satisfaction was required to give jurisdiction to the Asansol Court to proceed with Execution Case No 224 of 1932
The judgment debtor was aware that the copy of the decree and the certificate of non satisfaotion were not sent to the High Court and he could not possibly have laboured under a wrong impression that a fresh certificate had been sent by the High Court for taking execution prooeedings and that the decree holder practised no fraud upon him
He also pleaded that the application was barred by limitation that it was barred by the principle of res judicata as the objection now raised had previously been made and either not pressed or rejected and that the judgment debtor was fully aware of all the proceedings that had taken place in connection with the decree
The Subordinate Judge framed the following three main issues in the case 1
Is this Miscellaneous Case maintainable under section 151 of the Civil Procedure Code 2Did this court act in accordance with section 41 Civil Procedure Code  If so was the decree retransmitted to this court for fresh execution in 1932  If not had this court jurisdiction to execute the decree again in 1932  390 3
Is this Miscellaneous Case barred according to the principle of res judicata  Upon the first point the learned Subordinate Judge held that the executing court did not lose jurisdiction to execute the decree that the allegation about the detaching of certificate of non satisfaction from the records in the custody of the court and its surreptitious insertion in Execution Case No 224 of 1932 constitute grounds for a suit and a fresh application under section 151 of the Civil Procedure Code was not maintainable
Upon the second point the court held that having regard to the circumstances of the case no certificate of non satisfaction of the decree as required by section 41 was sent by the executing court to the High Court that no re transmission of the decree by the High Court was required to start Execution Case No 224 of 1932 and that the executing court retained seisin of the execution and could execute the same without a further direction from the High Court
Upon the third point the learned Subordinate Judge held that Mukherjee had alleged in para
15 of his petition in Miscellaneous Case No 53 of 1933 that the decree and the certificate were not sent by the High Court for starting the execution case afresh but this objection to jurisdiction was not pressed at the time of the hearing
Again in para
20 of his petition in Miscellaneous Case No 76 of 1938 he had urged the same point but it was not pressed
Mukherjee admitted in his evidence as P W 4 that all his applications were drawn up according to his instructions but despite this fact he did not press the allegations made in the miscellaneous cases
It was accordingly held on the authority of Annada Kumar Roy and Another vs Sheik Madan and Others 1 and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh 2 that the principle of constructive resjudicata is applicable to execution proceedings
The view taken by the Court was that having made the allegations in the miscellaneous oases and then abandoned them the judgment debtor 1 2 AIR 1938 Patna 427
391 was precluded from raising the plea of jurisdiction of the court to execute the decree Mukherjee preferred an appeal to the High Court
The matter came up before Harries C J and Sarkar J
The learned Chief Justice held that the Asansol Court not only sent what purported to be a certificate under section 41 of the Civil Procedure Code to the High Court but intended such certificate to be a certificate of non satisfaction
He did not agree with the Subordinate Judge that the document was not intended to be a certificate and was merely an intimation that the first attempt at execution  had failed
In the view of the learned Chief Justice there was no need for the Court at Asansol to send any intimation at all
The learned Chief Justice agreed that upon a true construction of section 41 failure to execute the decree at the first attempt for non appearance of the decree holder was not the total failure to execute the decree as contemplated in that section
He however held that the fact that the certificate was sent when it should not have been sent cannot affect the question if as he held the certificate was intended to be a certificate of non satisfaction
The learned Chief Justice referred to a number of authorities in support of his conclusion
He accordingly held that the Asansol Court had ceased to have jurisdiction to execute the decree and was not entitled to entertain the second application for execution
Upon the question of res judicata the learned Chief Justice observed that  a judgment delivered by a Court not competent to deliver it cannot operate as res judicata and the order of the Subordinate Judge of Asansol being wholly without jurisdiction cannot be relied upon to found a defence upon the principle of res judicata
 He went on to say It is true that the appellant could and should have raised the question in the second execution case that the Asansol Court had no jurisdiction  in the absence of a certificate of non satisfaction from the High Court to entertain the application
But in my view though this point was neither made nor pressed these orders of the learned 392 Subordinate Judge in the second execution application cannot be urged as a bar to the present application under the doctrine of res judicata
It is true that section 11 of the Code of Civil Procedure does not apply to execution proceedings but it has been held by their Lordships of the Privy Council that the principles of the law relating to resjudicata do apply to execution proceedings and Mr Atul Gupta has urged that the present application is barred by res judicata  
He drew a  distinction between the case of an irregular assumption of jurisdiction and want of inherent jurisdiction and holding that the order of the Subordinate Judge at Asansol fell under the latter category he came to the conclusion that the order is wholly null and void and cannot be pleaded in bar of the application on the principle of res judicata
It has been contended before us on behalf of the appellant assignee decree holder that the execution Court at Asansol never lost jurisdiction over the execution proceedings and that what purported to be a certificate under section 41 of the Civil Procedure Code was no more than a mere intimation to the High Court that the execution case had been dismissed only for default that it was no failure to execute the decree within the meaning of section 41 of the Civil Procedure Code that in any case the subsequent orders of the High Court passed from time to time in the presence of the parties conferred jurisdiction upon the execution Court to proceed with the execution and that in any event the question whether the execution Court had or had not jurisdiction to execute the decree was barred by the principle of res judicata
Having heard learned counsel for the parties we are of opinion that the appeal can be dis posed of on the ground of res judicata without entering into other questions
It cannot be disputed that the transferee Court was invested with jurisdiction by the High Court when its decree was transferred to it for execution
The first application for execution of the decree was dismissed 393 for default on February 27 1932 and a document purporting to be a certificate of non satisfaction under section 41 of the Civil Procedure Code was sent by the execution Court to the High Court
The decree was admittedly not retransmitted for execution by the High Court
Despite this fact the decreeholder made a second application for execution on November 24 1932 Execution Case No 224 of 1932
Notice was duly served upon the judgmentdebtor but he preferred no objection before the execution Court that it had no jurisdiction to execute the decree
This is the first occasion on which he could have raised the plea of jurisdiction
The second occasion arose when the decree holder filed an affidavit Exhibit C before the High Court on March 17 1933 praying that certain directions should be given to the execution Court for the sale of Sripur properties and for an order discharging the Receiver
Notice was duly served upon the judgment debtors including Mukherjee Exhibit 13 and the order granting the prayers of the decree holder was passed on March 27 1933 Exhibit F 5
The judgmentdebtor could have pointed out that the Asansol Court was functus officio after sending the certificate under section 41 and had no further jurisdiction to sell the property in execution but no such objection was raised
This order clearly recites that notice was sent to the Chatterjees as well as to Mukherjee and was proved by an affidavit to have been duly served upon them
The decree holder s prayer was granted and in pursuance of the order of the High Court the property was sold and was purchased by the decreeholder for Rs 20000 whereupon Mukherjee started Miscellaneous Case No 53 of 1933 for setting aside the sale
In this application Exhibit E the judgment debtor raised the question of jurisdiction in paragraph 19 which runs thus  As the said decree has not been sent to this court for execution nor has any certificate come to this Court therefore the execution proceedings and the auction sale are wholly irregular illegal fraudulent and collusive
 394 The order of the Subordinate Judge dated January 29 1934 by which he set aside the sale does not mention that the plea raised in paragraph 19 of the application was pressed
The decree holder who was aggrieved by this order preferred two appeals Nos 254 and 255 of 1934
The order of the High Court Exhibit F 2 dated July 11 1935 shows that the decision of the Subordinate Judge setting aside the sale was confirmed
It appears that the judgmentdebtors had raised the question that the decree could not be executed without the decree holder applying for making the decree absolute
In view of this dispute the learned Judges added in the order that although they were confirming the order of the Subordinate Judge setting aside the sale the judgment debtors will not be entitled to raise any objection as to the nature of the decree which in their opinion was executable under the terms of the compromise arrived at by the parties concerned
Here again no objection was raised by the judgment debtors that the execution Court had no jurisdiction to execute the decree and sell the property
The next occasion when the objection to jurisdiction should have been raised was when the property was to be resold
Mukherjee started Miscellaneous Case No 62 of 1936 on April 2 1936 Exhibit 1 in which he raised all sorts of objections to the execution but nowhere stated that the execution Court had no jurisdiction to sell the property after the certificate under section 41 of the Civil Procedure Code had been sent to the High Court
The property was sold for the second time and was purchased by the decreeholder on April 22 1936
Mukherjee preferred an appeal No 238 of 1936 and at the same time started a Miscellaneous Case No 80 of 1936 in the execution
Court to set aside the sale
No plea of jurisdiction was raised either in the grounds of appeal to the High Court or in the application f or setting aside the execution sale
The appeal was disposed of by consent of parties with the direction that Miscellaneous Case No 80 of 1936 should be reheard by the 395 execution Court
The sale was set aside on rehearing
Mukherjee then started Miscellaneous Case No 40 of 1938 under section 47 of the Civil Procedure Code on April 4 1938
The objection of lack of jurisdiction in the execution Court was again missing in this application
The application was dismissed and the appeal against it was also dismissed on May 25 1938
When a the property was sold for the third time Mukherjee started Miscellaneous Case No 76 of 1938 on June 27 1938 for setting aside the sale Exhibit E 4
In paragraph 20 of his application he stated That this court has no jurisdiction to entertain this application for execution without a fresh certificate sic the court passing the decree under executions The previous certificate creating jurisdiction in the present court has long expired after the dismissal of the previous execution case
The whole proceeding and the sale thereunder is not only illegal and materially irregular but is absolutely void for want of jurisdiction
 This plea was apparently not pressed and the Miscellaneous Case was dismissed on June 30 1938
Mukherjee filed an appeal F M A No 262 of 1938 Exhibit F on August 23 1938 but the appeal was dismissed on August 5 1940 on the ground that there was no material irregularity in publishing the sale and the colliery had not been sold at an inadequate price on  account of any such irregularity
This again shows that no question of jurisdiction was raised before the learned Judges of the High Court
Then followed the review application Exhibit B presented on November 25 1940 to the High Court
Paragraphs 11 12 and 13 of this application are important and they run as follows  11
That after passing the 
judgment in FA No246 of 1937 on 13th August 1940your petitioner got the records of Suit No 1518 of 1923 of the Original Side of this Hon ble Court searched for ascertaining the amount due under the decree of the said 396 suit and came to know for the first time on 23rd August 1940 that after dismissal of the old Execution Case No 296 of 1931 by the Subordinate Judge of Asansol on 27th February 1932 the result of the said execution case was sent to the Original Side of this Hon ble Court under section 41 Civil Procedure Code and that was received on 11th March 1932 and that no fresh  certificate of non satisfaction of the decree was sent by the Original Side of this Hon ble Court for fresh execution and so there was no basis on which the Execution Case No 224 of 1932 could be started in the Court of the Subordinate Judge of Asansol
That your petitioner submits that the copies of the decree and certificate of non satisfaction were taken by the decree holder on detaching the same from the records of old used Execution Case No 296 of 1931 and fraudulently used afterwards in Execution Case No 224 of 1932 by practising fraud upon the Court
That your petitioner further begs to submit that he was misled by order of the Court of the Subordinate Judge which runs as follows S Register
Let the certificate of non satisfaction received be annexed to the record   This application was rejected on May 8 1941 and the order of the learned Judges which is brief may be reproduced in full The ground for review is that after the dismissal of the said appeal the petitioner discovered that the execution proceedings in which the sale took place was held by the executing Court although that Court did not receive any certificate of non satisfaction from the Court which passed the decree under execution
This objection does not properly come for investigation in a proceeding under Order XXI rule 90 Civil Procedure Code
Even if the allegation of the petitioner about the discovery of new matter is correct it cannot affect the decision of the appeal which we have dismissed
 397 The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment debtor nor in the applications for setting aside the two sales made by him did the judgment debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree
The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructiveres judicata after the property has been sold to the auction purchaser who has entered into possession
There ate two occasions on which the judgment debtor raised the question of jurisdiction for the first time
He did not however press it with the result that the objection must be taken to have been impliedly overruled
One such occasion was when the property was sold for the second time and was purchased by the decree holder for Rs 20000
In paragraph 19 of his application dated July 7 I 933 Exhibit E to set aside the sale he challenged the jurisdiction of the Court but the order of the Court dated the 29th January 1934 does not show that the plea was persisted in
The second occasion was when the property was sold for the third time and in his application Exhibit E4 dated June 27 1938 for setting aside the sale he raised the question in paragraph 20
The objection application was dismissed but there is no trace of the judgment debtor having pressed this objection
When he preferred an appeal to the High Court he did not make the plea of jurisdiction a ground of attack against the execution of the decree and the appeal was dismissed on other points
Finally he filed a review application and in paragraphs 11 12 and 13 he raised the objection to execution in more elaborate words but the application was rejected by the High Court on the ground that such an objection did not fall within the purview of Order XXI rule 90 of the Code of Civil Procedure 398 This order therefore became final
The judgmentdebtor admitted that the two applications Exhibits E and E 4 were prepared according to his instructions
It is not possible therefore for the judgmentdebtor to escape the effect of the above orders which became binding upon him
That the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt
See Annada Kumar Boy and Another vs Sheik Madan and Others 1 and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh2
In the first case an application was made by a certain person for execution of a decree and no objection was raised that the decree was not maintainable at the instance of the applicant and the application was held to be maintainable
It was held that no further objection on the score of the maintainability of a fresh application for execution on the part of the same applicant could be raised
In the second case a money decree had been obtained on the foot of a loan which was the subject matter of a mortgage and the property was sold in execution
The judgment debtor raised the question of the validity of the execution proceedings and objected that the execution court had no jurisdiction to sell the property in execution of a money decree as no sanction of the Commissioner had been obtained under section 12 AChota Nagpur Encumbered Estates Act
The objection was not decided but the objection petition was dismissed with the result that the property came into the possession of the auction purchaser
In an action for a declaration that the sale to the purchaser was void for want of sanction of the Commissioner it was held that as the point was raised although not decided in the objection petition under section 47 it was res judicata by reason of Explanation IV to section 11
The Privy Council as early as 1883 in Ram Kirpal Shukul vs Mussamat Rup Kuari3 held that the decision 1 3 1884 11 I A 37
2 AI R 1938 Patna 428
399 of an execution Court that the decree on a true construction awarded future mesne profits was binding between the parties and could not in a later stage of the execution proceedings be set aside
Their Lordships ruled that the binding force of such a decision depends upon general principles of law and not upon section 13 Act X of 1877 corresponding to section 11 of the present Code
In that case the Subordinate Judge and the District Judge had both held that the decree awarded mesne profits but their decision was reversed by the Calcutta High Court
The Full Bench of that Court also held that the law of res judicata did not apply to proceedings in execution of the decree
This decision was reversed in appeal by the Privy Council
At page 43 Sir Barnes Peacock who delivered the judgment of the Board observed The High Court assumed jurisdiction to decide that the decree did not award mesne profits but whether their construction was right or wrong they erred in deciding that it did not because the parties were bound by the decision of Mr Probyn who whether right or wrong had decided that it did a decision which not having been appealed was final and binding upon the parties and those claiming under them
 In Raja of Bamnad vs Velusami Tevar and Others1 an assignee of a partially executed decree applied to the Subordinate Judge to be brought on the record in place of the decree holder
The judgment debtor denied the assignment and the liability of certain properties to attachment and alleged that the right to execute the decree was barred by limitation
The Subordinate Judge recognized the assignment allowed the assignee to execute the decree and gave his permission to file a fresh application for attachment
This order was not appealed against
In the final proceedings
The Subordinate Judge permitted to judgment debtors to raise again the plea of limitation
In the course of the judgment Lord Moulton observed as follows 1 1921 48 IA145 52 400 Their Lordships are of opinion that it was not open to the learned Judge to admit this plea
The order of December 13 1915 is a positive order that the present respondent should be allowed to execute the decree
To that order the plea of limitation if pleaded would according to the res pondents  case have been a complete answer and therefore it must be taken that a decision was against the respondents on the plea
No appeal was brought against that order and therefore it stands as binding between the parties
Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded
It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it and moreover it was in fact brought forward and decided upon
 Sha Shivraj Gopalji vs Edappakth Ayissa Bi and Others 1  In this case the decree holder in t e earlier execution proceedings could have raised a plea that the judgment debtor had an interest in certain property which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed
It was held under such circumstances that the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of section 11 of the Civil Procedure Code it is contrary to principle to allow the decree bolder in fresh proceedings to renew the same claim merely because he neglected at a proper stage in previous proceedings to support his claim by the argument of which he subsequently wishes to avail himself
There is ample authority for the proposition that even an erroneous decision on a question of law operates as resjudicata between the parties to it
The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata
A decision in the previous execution 1 AIR 1949 PC 302 54 CWN 54
401 case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties see Abhoy Kanta Gohain vs Gopinath Deb Goswami and Others1
The learned Chief Justice concedes that the principle of res judicata applies to the execution proceedings but he refused to apply it to the present case on the ground that there was lack of inherent jurisdiction in the execution Court to proceed with the execution
He relied upon Ledgard and Another vs Bull 2
This case is distinguishable upon the facts
This was a suit instituted before the Subordinate Judge for infringement of certain exclusive rights secured to the plaintiff by three Indian patents
Under the Patents Act the suit could be brought only before the District Judge
The defendant raised an objection to the jurisdiction of the Court
It appears that  subsequently the defendant joined the plaintiff in petitioning the District Judge to transfer the case to his own Court
This was done
The suit was transferred under section 25 of the Civil Procedure Code
It was admitted that the suit could not be transferred unless the Court from which the transfer was sought to be made had jurisdiction to try it
The defendant adhered to the plea of jurisdiction throughout the proceedings but it was urged that by his subsequent conduct he had waived the objection to the irregularity in the institution of the suit
Their Lordships held that although a defendant may be barred by his own conduct from  objecting to the irregularity in the institution of the suit yet where the Judge had no inherent jurisdiction over the subject matter of the suit the parties cannot by their mutual consent convert it into a proper judicial process
This decision has no bearing upon the present case as no question of constructive res judicata arose in that case
The cases of Gurdeo Singh V Chandrika Singh and Chandrikah Singh vs Rashbehary Singh 3 and 1 AIR 1943 Cal 460
2 1886 13 IA 134
3 Cal
402 Rajlakshmi Dasee vs Katyayani Dasee 1 are both dis tinguishable as they did not involve any question of constructive res judicata
Two cases of the Allahabad High Court 1 Lakhmichand and Others vs Madho Rao 2 2 Baghubir Saran and Another vs Hori Lal and Another 3 were also relied upon in the judgment under appeal
 The first was a case of the grant of assignment of the land revenue of a village in favour of the grantee
He mortgaged it and a suit brought on foot of the mortgage was decreed
In a subsequent suit for a declaration that the previous decree of the Court was null and void by reason of the fact that the suit was not cognisable in the absence of a certificate from the Collector as required by the Pensions  Act authorizing the trial of such a suit it was held that the decree was one without jurisdiction and that it did not operate as res judicata in the subsequent suit for which the certificate was obtained
It was obvious that the statutory provisions of the Act forbade the trial of any suit without the certificate of the Collector
There was therefore an initial lack of jurisdiction to try the case and the case is inapplicable to the facts of the present case
The second case which involved the question of territorial jurisdiction was in our view not correctly decided
There a suit against a minor for enforcement of the mortgage was decreed in respect of property which was beyond the territorial jurisdiction of the Court passing the decree
When the decree was transferred for execution to the Court within whose jurisdiction the property was situate it was objected that the decree was a nullity
The objection was overruled and the objector was referred to file a regular suit
In the regular suit filed by him it was decided that an independent suit was maintainable for avoiding the decree although no objection was raised to jurisdiction in the Court passing the decree
It was also held that the bar of section 11 Explanation IV of 1 Cal
639 2 1030 I LR 52 All 868
3 All
403 the Code of Civil Procedure did not apply to the case
We think that although section 21 of the Code of Civil Procedure did not apply in terms to the case there is no reason why the principle underlying that section should not apply even to a regular suit
The objection to jurisdiction must be deemed to have been waived and there was no question of inherent lack of jurisdiction in the case
The suit was clearly barred by the principle of res judicata and was wrongly decided
The question which arises in the present case is not whether the execution Court at Asansol had or had not jurisdiction to entertain the execution application after it had sent the certificate under section 41 but whether the judgment debtor is precluded by the principle of constructive resjudicata from raising the question of jurisdiction
We accordingly hold that the view taken by the High Court on the question of res judicata is not correct
We allow the appeal set aside the judgment and the decreeof the High Court and restore that of the Subordinate Judge dismissing the application of the judgment debtor
The appellant will be entitled to his costs here and hitherto
Appeal allowed
Agent for the appellant  P K Chatterjee
Agent for the respondent No 1 B B Biswas


Summary:
A decree passed by the Calcutta High Court on its Original Side in 1923 was transferred by that Court for execution to the Court of the Subordinate Judge of Asansol in 1931 with a certified of the decree copy of the order of transmission and certificate of partial satisfaction
The decree holder applied for execution to the Asansol Court but the application was dismissed for default in February 1932 and the Asansol Court sent to the Calcutta High Court what purported to be a certificate under section 41 Civil Procedure Code stating that the execution case was dismissed for default but neither the copy of the decree nor a covering letter was sent to the High Court
The decree holder again applied for execution in November 1932 and a certain colliery was proclaimed for sale on April 3 1933
Meanwhile other application of the decree holder the High Court passed an order on March 27 1933 discharging a Receiver who had been appointed in 1926 and granting liberty to the Court of Asansol to sell the colliery in execution by public auction
After this order was communicated to the Asansol Court it sold the colliery in auction
The sale was set aside and the colliery was resold
Again the sale was set aside and after the property was sold for the third time the judgment debtor applied under section 47 and 0
XXI r 90 Civil Procedure Code for setting aside the sale on the ground that after the dis missal of the execution case in February 1932 and the transmission of a certificate under section 41 to the High Court the Asansol Court had no jurisdiction to execute the decree
Held per DAS J
The order of the High Court dated March 27 1933 may well be regarded as in substance mounting toan order of transmission of the decree to the Asansol Court for execution under section 39 Civil Procedure Code and after the order had been communicated to the Asansol  Court the latter became fully seized of jurisdiction as the executing Court
The omission to send 378 a copy and a fresh certificate of non satisfaction was a mere irregularity which did not affect the jurisdiction of the Asansol Court Per GHULAM HASAN J
As the judgment debtor did not raise the present objection either when the decree holder made a second application for execution to the Asansol Court in November 1932 or when the decree holder applied to the High Court in March 1933 for giving liberty to the Asansol Court to proceed with the execution by sale of the colliery or in the proceedings for setting aside the sales of the colliery in 1936 or in the appeals therefrom though several other objections were raised and on one or two occasions when he did raise it he never pressed the objection he was precluded from raising the plea at a later stage on the principle of constructive res judicata
The mere fact that the question related to the jurisdiction of the Court would not prevent the operation of the rule of res judicata
MAHAJAN and VIVIAN BOSE JJ
On either of the grounds stated by DAS J and GHULAM HASAN J the judgment debtor was precluded from raising the objection that the Court of Asansol had no jurisdiction to execute the decree
Ledgard and Another vs Bull 1886 13 IA 134 Gurdeo Singh vs Chandrika Singh 1909 ILR  Rajlakshmi Dasi vs Katyayannee 1911 ILR and Lakhmichand and others vs Madho Rao 1930 ILR 52 All
868distinguished
Raghubir Saran vs Horilal and Another 1931 ILR 53 All
560 overruled
Annada Kumar Boy and Another vs Sheik Madan and Others  Mahadeo Prasad Bhagat vs Bhagwat Narain Singh AIR 1938 Pat
428 Bam Kirpal Sukul vs Mussamat Rup Kueri 1884 11 IA 37 Raja of Ramnad vs Veluswami Tevar and Others 192148 IA 45 and Sha Shivraj Gopalji vs Edappakath Ayissa Bi and Others AIR referred to