Full Judgment Text
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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