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PETITIONER: MOHANLAL GOENKA

       Vs.

RESPONDENT: BENOY KRISHNA MUKHERJEEAND OTHERS.

DATE OF JUDGMENT: 09/12/1952

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MAHAJAN, MEHR CHAND BOSE, VIVIAN HASAN, GHULAM

CITATION:  1953 AIR   65            1953 SCR  377  CITATOR INFO :  R          1974 SC 994  (94)  RF         1988 SC 375  (28)  RF         1991 SC2234  (43)

ACT: Res judicata-Execution proceedings-Omission to raise  objec- tion  to  jurisdiction of executing  Court-Constructive  res Judicata-Transfer  of  decree for  execution-Execution  case dismissed  for default -Executing Court sending  certificate to  Court which passed the decree under s. 41,  C.P.C.-Fresh application           to          executing           Court- Maintainability-Jurisdiction--Order  of Court  which  passed the  decree giving liberty to proceed with  execution-Effect of-Civil Procedure Code, 1908, ss. 11, 39, 41.

HEADNOTE:    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  s.  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  s.  47 and 0. XXI, r. 90, Civil Procedure  Code,  for

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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 s. 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 to,an  order  of transmission of the decree to  the  Asansol Court  for execution under s. 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 v. Bull ([1886] 13 I.A. 134), Gurdeo Singh v.  Chandrika  Singh  ([1909]  I.L.R.  36  Cal.  193), Rajlakshmi  Dasi v. Katyayannee ([1911] I.L.R. 38 Cal.  639) and  Lakhmichand and others v. Madho Rao ([1930]  I.L.R.  52 All.  868)distinguished.   Raghubir  Saran  v.  Horilal  and Another ([1931] I.L.R. 53 All. 560) overruled.     Annada  Kumar Boy and Another v. Sheik Madan and  Others (1934)  (38  C.W.N. 141), Mahadeo Prasad Bhagat  v.  Bhagwat Narain  Singh  (A.I.R. 1938 Pat. 428), Bam Kirpal  Sukul  v. Mussamat  Rup Kueri ([1884] 11 I.A. 37), Raja of  Ramnad  v. Veluswami  Tevar  and  Others ([1921]48  I.A.  45)  and  Sha Shivraj  Gopalji v. Edappakath Ayissa Bi and Others  (A.I.R. 1949 P.C. 302) referred to.

JUDGMENT:   CIVIL  APPFLLATE  JURISDICTION: Civil 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  C.J. 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

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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, 1932,dismissed 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 17,1933, 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

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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.  30,437-8-0  besides a sum of Rs. 3,500 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 No.224 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

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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. 20,000.   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

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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. 75,000  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

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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.  20,000.  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.  12,000. 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. 2,60,000 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

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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,  1940,7  an application  for  leave  to  appeal  to  the  Privy  Council (Exhibit  A).  The review application was dismissed  on  May 8,1941, 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-

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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? 2.Did  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 v. Sheik Madan and Others (1) and Mahadeo Prasad Bhagat  v.  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) (1934) 38 C.W.N. 141. (2) A.I.R. 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

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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.

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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. 20,000, 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

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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 F.A.  No.246 of 1937 on 13th August, 1940,your 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. 12.  That  your  petitioner submits that the copies  of  the

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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. 13.  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. 20,000.  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  E.4)  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

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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 v. Sheik Madan  and Others  (1),  and Mahadeo Prasad Bhagat  v.  Bhagwat  Narain Singh(2).   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-A,Chota 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  v. Mussamat Rup Kuari(3) held that the decision (1) (1934) 38 C.W.N. I41       (3) (1884) 11 I. A. 37. (2)  A.I. 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 v. Velusami Tevar  and  Others(1)  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

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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 I.A.145, 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 v. 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)  A.I.R. 1949 P.C. 302; 54 C.W.N, 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 v.  Gopinath Deb Goswami and Others(1). 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 v. 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

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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 v. Rashbehary Singh (3) and (1)  A.I.R. 1943 Cal. 460. (2)  (1886) 13 I.A. 134. (3) (1909) I.L.R. 36 Cal. 193. 402 Rajlakshmi  Dasee  v.  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  v. Madho Rao (2), (2) Baghubir Saran and Another  v. 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)  (1911) I.L.R. 38 Cal. 639 (2)  (1030) I. L.R. 52 All. 868. (3)   (1931) I.L.R. 53 All. 560. 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

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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 decree,of 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. 404