TMI Blog1952 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ilege 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 As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osts 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff 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 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 ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta 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 ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibit 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-satisfac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken 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 ? 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Subordinate Judge in the second execution application cannot be urged-as a bar to the present application under the doctrine of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 ₹ 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale. The appeal was disposed of by consent of parties with the direction that Miscellaneous Case No. 80 of 1936 should be reheard by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale 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. 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 occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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((1884) 11 I. A. 37. ) held that the decision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structive res judicata. Two cases of the Allahabad High Court Lakhmichand and Others v. Madho Rao ((1030) I. L.R. 52 All. 868), (2) Baghubir Saran and Another v. Hori Lal and Another ((1931) I.L.R. 53 All. 560.) 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 terr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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