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TMI Blog1961 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... on the 12th March, 1956, in execution of a money decree. They have been made analogous, and have been heard together. This judgment will govern them both. 3. The facts of the case may be shortly stated. Money suit No. 62 of 1953, was decreed against Ramphal Sahni and his son on the 16th November, 1953. The decree-holders filed an application for execution of the decree on the 8th August, 1955. An order dated the 6th September, 1955, shows that notice under Order XXI, Rule 22 of the Code of Civil Procedure (hereinafter to be referred to as the Code) was served. The order dated the 1st October, 1955, shows that attachment was effected. It appears from the order dated the 19th November, 1955, that notice Under Section 13 of the Money Lenders Act was also served. No objection relating to valuation having been raised by the judgment-debtors, the court accepted the valuation given by the decree-holders by its order dated the 11th January, 1956, and passed an order for issue of sale proclamation fixing the 12th March, 1956 for sale. Two lots of the judgment-debtors'.' Kaimi Kasht lands were sold on the 12th March. The order of that date shows that the decree-holders themselves b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution proceedings and that the amended Clause (b) of Section 49-M (1) had no application to this case. He also held that the application was barred by limitation. 6. The applicant, Ramphal Sahani, took an appeal to the Court of the District Judge, and the Additional District Judge, 2nd Court, who heard it, held that the Munsif's finding that the processes in the execution case were duly served was correct, and he also said that it had not even been challenged before him. He, however, held further that Clause (b) of Section 49-M (1) was applicable to the case, that the sale was void as the kasht lands of persons who being Mallahs by caste belonged to the backward classes had been sold, and that Article 166 of the Limitation Act was not applicable to this case it being governed by three years' limitation. 7. Appearing on behalf of the appellant, Mr. Prem Lall has urged three points, which are as follows : (1) That the processes having been duly served, the judgment-debtors had full knowledge of the execution proceedings. As they did not object to the sale of their kasht lands before the sale On the ground of those lands being non-saleable by statute, the executing court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Prem Lall has, however, argued that the sale by the court and the order of confirmation of the sale operate as res judicata. On the other hand, Mr. Srivastava has, firstly, urged that the sale of a property in disregard of a statutory prohibition against its sale, which is based upon public policy, is void and as the court has no jurisdiction to sell such a property, acceptance of the sale or confirmation thereof by it cannot operate as res judicata. His second line of argument is that the facts admitted by the decree-holders in the application for execution, itself made out that the judgment-debtor's property was not liable to sale and hence the court acted without jurisdiction in selling that property. He has contended that even if the proposition in general form as he has put up in his first line of argument is not accepted, he must succeed on the basis of the second argument. Without proceeding any further, I may mention at this very stage that Mr. Prem Lall has submitted that the mere fact that the judgment-debtors are Mallahs by caste and that the properties in question are their kasht lands are not sufficient to enable the court to hold that those properties are non-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other objection also and has held against it. This principle of constructive res-judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the court passes an order which it could not have passed in case that objection had succeeded on the ground that it must be deemed to have been raised by the party and decided against it. In other words, when an order is passed by a competent court, which is inconsistent with the existence of fact or law on which the parry could have based its objection, it must be deemed that the court has decided those facts or law against it. 12. In a proceeding for execution of a money decree by attachment and sale of the judgment-debtor's Immovable property, there are five important stages. Under the Patna amendment of Rule 22 of Order XXI, the court has to issue notice in every case to the person against whom execution is levied, requiring him to show cause why the decree should not be executed against him. Rule 23 reads : "(1) where the person to whom notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of actual sale and that circumstance makes the property non-saleable, the Court cannot possibly proceed to sell the property, if it sustains an objection that subsequent to the order of sale, the property has, become non-saleable by reason of a prohibition contained in a statute or otherwise. The sale is the culmination towards which the execution proceeding moves. The Order for sale of a property is passed only in order to enable the court to sell it later. The order and the sale are thus connected together. The judgment-debtor must know after the Order for sale that the court would necessarily sell the property unless he raises an objection before sale, if such an objection is available to him, that the property has become non-saleable after the order for sale. Having knowledge and opportunity, the judgment-debtor, who desires to object to the Sale of the property on such a ground, might and ought to raise it before the sale. Under Rule 65 of Order XXI, a sale is conducted by an officer of the court Or by a person appointed for that purpose by the court. The sale must nevertheless be considered to have been held by the court. It acts judicially in accepting the bid and in passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While reversing the decision of the High Court, their Lordships of the Judicial Committee observed that the Subordinate Judge, before whom the sixth application for execution was filed had jurisdiction to determine on the 8th October when the decree was barred by limitation. When he passed an order on that date for attachment, he must be deemed to have done so on an adjudication that the decree was not barred by limitation. Section 3 of the Limitation Act lays down that every suit application, etc., filed after expiry of the period of limitation "shall be dismissed although limitation has not been set up as a defence". In delivering the judgment of the Judicial Committee, Sir Barnes Peacock has stated, with reference to the Subordinate Judge's order of attachment dated the 8th October, 1874 : "He, whether right or wrong must be considered to have determined that it was not barred. A judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the Defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he decrees for the Plaintiff, his decree is valid, unless reversed upon appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, allow the whole matter to proceed until the sale is completed and then as to have it set aside on account of this, as they say misdescription .............................. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any mis-description of the property attached, and about to be sold, which he knew well, but of which the execution-creditor or decree-holder might be perfectly ignorant that they should take no notice of that, allow the sale to proceed, and then come forward and say the whole proceedings were vitiated." 17. It is clear from the observation which I have quoted above that their Lordships were of opinion that the sale was the decisive point. The objection in question could not be taken before the order for sale under Rule 64 because it arose from the sale proclamation issued under Rule 66 of Order XXI of the Code. As it was taken about a week after the sale, their Lordships said that the judgment-debtors could not raise it after the sale was completed. 18. In Bindeshwari Charan v. Bageshwari Charan AIR 1936 PC 46, Jadu Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a transaction is void if a certain provision of law applies, it is for the Court to decide whether that provision is applicable. Once a competent Court has given a decision, holding expressly or by implication, that that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. Applying that principle to the facts of the present case, it is manifest that the sale may have been made in disregard of the provision of Clause (b) of Section 49M(1) but it was for the court to decide whether that provision was legal and. as a matter of construction, whether it made the properties in question non-saleable. If an order of the Court is deemed to have decided that question, that order is binding upon the parties. 19. Mahajan, J., who delivered the judgment of the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen AIR 1953 SC 33, has quoted an observation of the Privy Council in T. B. Ramachandra Rao v. A. N. S. Ramachandra Rao 49 I A 129; ( AIR 1922 PC 80), a part of which is as follows : "...........it has been recently pointed out by this Board in G. H. Hook v. Administrator-General of Bengal 48 I A 187: (AIR 1921 PC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 constructive res judicata after the property has been sold to the auction-purchaser who has entered into possession. There are 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." His Lordship has further stated: "There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res judicata' 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'." These observations leave no room for doubt that a decision, express or implied--even an erroneous decision on a question of law or jurisdiction--is binding upon the parties. Mr. Srivastava has, however, pointed out that S. R. Das, J. has rested his decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion sale, the judgment-debtor gets notice at first about the attachment of the property under Order 21, Rule 54, Civil procedure Code, and then in connection with the proclamation of sale under Order 21, Rule 66, Civil Procedure Code. I# the judgment-debtor is duly served but fails to raise any objection to the proposed sale, I do not see why he should not be held to be debarred from raising the objection later on the principle contained in the observations of their Lordships of the Privy Council quoted above." (The reference is to 15 I A 171.) He has further stated: "Along with Rule 66 have to be read Rules 90 and| 92 which I think leave little doubt that the Code does not contemplate any objections being raised after the auction, except such as fall within the scope of Rule 90, i.e., objections relating to material irregularities and fraud in publishing and conducting the sale. This is presumably because objections such as those to the liability of the property to be sold are intended to be disposed of before the sale." 26. In a Full Bench decision of the East Punjab High Court in Pirji Safdar Ali v. Ideal Bank. Ltd. AIR 1949 EP 94, it has been held that the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, restraining the defendants from interfering with their possession and enjoyment of both the items of properties. The second defendant contested the suit which was dismissed. An appeal in the first appellate Court failed, and the plaintiffs filed a second appeal in the High Court. That appeal came before the Full Bench, and one of the points for decision was whether it was open to an inamdar to treat the court sale as null and void, though he had raised no objection at any stage of the proceeding in the mortgage suit to the saleability of the lands in question. Their Lordships agreed that a judgment delivered by a Court which had no jurisdiction could not operate as res judicata, but said that the furisdiction of a Court depended upon whether it had pecuniary or territorial jurisdiction or jurisdiction. Over the subject-matter, A decision as to whether a mortgage or sale was valid or invalid did not go to the root of the jurisdiction. The Court which granted the mortgage decree in that case had jurisdiction to decide whether the mortgage was valid, having regard to the provisions of Act III of 1895. If the defendant of that suit had raised the plea that the mortgage was void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable, the executing Court on the same facts could come to a different conclusion and refuse to execute the decree. This would effect the finality and sanctity of decrees passed by competent Courts..............." He has further said : "It is true, that, if an executing Court could go behind the decree and hold that an alienation was void, it would be incongruous to hold that the decision in that suit would be res judicata in another suit. I would prefer to adhere to the strict rule barring the executing Court going behind the decree rather than to stretch the rule to a breaking point to sustain principles of public policy. Both can co-exist without doing violence to either. "A wrong decision express or implied, directing a sale and thus taking a case out of the rule of prohibition based on public policy can be set aside or modified by appropriate procedure ....." He has said that such a decision is good until it is set aside, and has further stated : "There is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it must be deemed that there is an adjudication that the property can be sold. In this view, it is unnecessary to consider Raja of Vizianagram v. D. Chelliah, ILR 28 Mad 84, Sannamma v. Radhabhavi ILR Mad 418 : AIR 1918 Mad 123) (FR) Narahari Sahu v. Siva Korithan Naidu 24 M LJ 482 and other cases cited on this point". Thus, this decision lays down that an order confirming a court sale amounts to an adjudication on the question of saleability of the property as between the same parties. 31. Mr. Prem Lall has cited the decision of another Division Bench of the Madras High Court in. D. Venkatranga Reddi v. P. C. Sithamma AIR 1941 Mad 440. Following Mungul Pershad Dichit's case, 8 I A 123 (PC) that decision lays down that, when an order for execution is made after notice to the judgment-debtor who does not appear and raise an objection on the point of limitation, he cannot be allowed later to urge that the application for execution is barred by limitation. 32. In a recent Full Bench decision of the Madras High Court in Mohan Ram v. T. L. Sun-dararamier AIR 1860 Mad 377, the question which arose for consideration was how far the executing Court could go behind the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed''. I respectfully differ from this view. The Court's conscience is also concerned with the question of res judicata, express or constructive. It has to see that a party should not be allowed to take advantage of its negligence and to urge an objection subsequently, though it did not raise that objection earlier when it might and ought to have raised it. 33. A Full Bench of the Orissa High Court has held in Jagannath Ramanuj v. Lakshmi Narayan that the decision of the Court on the question of jurisdiction of the executing court to execute a decree in a prior execution case is binding upon the parties in all subsequent execution leases relating to the same decree irrespective of whether the decision was right or wrong, 34. Mr. Prem Lall has referred to several cases of the Calcutta High Court, In Dwarkanath Pal v. Tarinj Sankar ILR Cal 199, a non-transferable occupancy holding was sold, in execution of a money decree. When the question of validity of the sale was raised, their Lordships held that, as the purchaser had subsequently obtained! the landlord's consent to the sale, it was rendered valid. They also discussed, however, the question of res judicata and. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to a case where there is an inherent lack of jurisdiction in the Court. For instance, a Subordinate Judge tries a case relating to a subject-matter which is exclusively triable by the District Judge. Even though the Subordinate Judge decides the case without objection by the defendant, his decision will be a nullity and will not operate as res judicata. An express or implied decision on the question of jurisdiction will operate as res judicata when certain facts have to be proved in order to show that the Court has no jurisdiction but the interested party does not allege those facts or take an objection as to lack of jurisdiction before the Court decides the case. The facts of Newton's case may themselves be taken as example. The jurisdiction of the Chief Judge of the Court of Small Causes or a judge nominated by him to try suits for ejectment was limited to tenancies with a maximum rent of ₹ 506/- per month. The plaintiff of the previous two suits instituted each suit for ejectment of the defendants from each flat of the house, alleging that there were two separate tenancies, and that the rent for one flat was ₹ 350/- and that for the other flat was ₹ 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion over the case, the decision is conclusive till it is set aside in an appropriate proceeding. But where there has been no such adjudication, the decree remains a decree without jurisdiction and cannot operate as res judicata." In my judgment there is no reason why an implied decision on a question of jurisdiction cannot operate as res judicata when and only when an express decision on that question would. 38. In Jogeshwar Mohata V. Jhapal Santal IR 1924 Cal 638, it was held that an aboriginal tenant could not waive the protection afforded to him under Section 49-K of the Bengal Tenancy Act against involuntary sale of his right as a tenure-holder, raiyat or under-raiyat as that provision was meant for the benefit of a particular class of persons. No question of res judicata was raised or decided in that case. 39. In Gora Chand Haldar v. Prafulla Kumar AIR 1925 Cal 907, a Full Bench has held : "......Where the decree presented for execution was made by a court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, the executing court is entitled to refuse to execute it on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." . 42. Another Full Bench of this court had to consider in Ramranbijaya Prasad Singh v. Ram Kawal AIR 1949 Pat 139 whether the grant of a second reduction of rent under Section 112 (1) (d) within fifteen years of a previous reduction of rent in violation of Section 113 of the Bihar Tenancy Act was without jurisdiction. It was held that the second reduction was valid and not without jurisdiction. Subject to what I have already said about territorial jurisdiction, I respectfully agree with the observations of Ramaswami, J. (as he then was) in his judgment in that case which are as follows : "By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. As pointed out by West J. in Amritray Krishna v. Balakrishna Ganesh ILR 11 Bom 488: 'Jurisdiction consists in taking cognisance of a case involving the determination of some jural relation, in ascertaining the essential points of it, and in pronouncing upon them.' Objections affecting jurisdiction must relate either to the person, the place or the character of" the suit. If a court has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bench in that case, support the views which I have expressed on several points. 45. Mr. Prem Lall has also relied upon the decision of my learned brother Untwalia, J., sitting singly, in Nageshwar Prasad v. Lakshman Prasad AIR 1960 Pat 171; but that decision proceeds upon the proviso to Sub-rule (1) of Rule 90 of Order 21 as amended by the Patna High Court and not upon the ground of res judicata. 46. I proceed now to discuss the cases of this court which Mr. Srivastava has relied upon. In Jadhu Mahoto v. Kali Prasonno 1 Pat LJ 33 : AIR 1916 Pat 183), the provision in question was Section 47 of the Chota Nagpur Tenancy Act which prohibited the court from passing a decree or order for sale of the right of a raiyat in his holding and also the sale of such a right in execution of a decree Or Order, and was thus a provision similar to Section 49M of the Bihar Tenancy Act. A Bench of this Court held that the question as to the non-saleabflity of such a holding could be raised even at the stage of execution of a mortgage decree for sale of the holding as it was covered by the prohibition against the sale in execution of a decree or order. Their Lordships did not consider the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer in contravention of Sub-section (1) shall be registered or shall be in any way recognised as valid by any court, whether in the exercise of civil, criminal or revenue jurisdiction." It will be seen that these provisions are not as stringent as those in Section 47 of the Chota Nagpur Tenancy Act, or Section 49M of the Bihar Tenancy Act, which is under consideration in this case. It [Ray also be seen that these provisions prohibit private sales and they do not prohibit sale by a court in execution of a decree or order for sale. The relevant facts of the case were that an ex parte mortgage decree for sale of a raiyati holding in the Santal Parganas was passed against a tenant. The judgment-debtor objected at the execution stage that the holding could not be sold in view of the provisions contained in Sub-sections (1) and (2) of Section 27 of the Regulation. Their Lordships held that the objection could he raised at that stage and they upheld it. Courtney-Terrell, C. J., who delivered the judgment of the Bench, agreed with the observation of Kulwant Sahay, J. in Run Nath Mandal's case ILR Pat 178 : AIR 1928 Pat 227), which I have already quoted. Besides other grounds, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties sold in execution. Attachment and sale proclamation were effected The judgment-debtor twice took time, waiving all objections and irregularities. He then filed an objection under Section 47 of the Code in which he alleged that the house properties were not in the hands of the receiver and hence they could not he sold. When the objection was placed before the Subordinate Judge, the decree-holder's pleader admitted that the properties in question were the personal properties of the judgment-debtor and had not vested in the receiver. The objection succeeded before the Subordinate Judge, and the decree-holder came up in appeal to this Court. My learned brother Choudhary, J., who delivered the judgment of the Bench, held by reason of the admission of the decree-holder's pleader, that the principle of constructive res judicata did not apply to the case. If I may say so with respect, the decision may be justified on the ground that there was a lack of inherent jurisdiction in the executing Court to sell the house properties as they were not in the hands of the receiver, and the Court had directed the decree-holder to realise his dues from properties which were in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void or voidable because we have to consider, at present, the consequence of the judgment-debtor not having raised the objection before the sale when he might and ought to have raised it. In accordance with the views which I have expressed, I hold that the judgment-debtor is barred by the principle of constructive res judicata from raising the objection on the ground of non-saleability of the kasht lands. It is also manifest that there is no admission by the decree-holders in their application for execution that the lands in question are non-saleable. Although it has been stated that they are kasht lands of the judgment-debtors, who are Mallahas by caste, the legality and construction of Section 49M of the Bihar Tenancy Act were open to the Court to adjudicate upon. It had complete jurisdiction to decide these questions. That being so, the second line of Mr. Srivastava's argument must also be rejected. In these circumstances, there can be no doubt that the learned Additional District Judge was in error in allowing the judgment-debtor to raise the question of non-saleability of the lands, which have be"n sold, as he was barred by the principle of constructive res judicata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prised of 'char bigaha erazi kebza Kasht....' and lot No. 2 comprised of 'thar bigaha Chhao Katha agarah dhur erazi kabza kasht ....'. 60. The execution case was transferred under the administrative Orders of the District Judge of Muzaffarpur to the file of the Special Execution Munsif. Order No. 2 dated 13-8-55 to Order No. 8 dated 3-1-56 show that notices under order 21 Rule 22 of the Code of Civil Procedure, hereafter referred to as the Code, and under Section 13 of the Bihar Money Lenders Act were served upon the judgment-debtors and attachment was also effected. Order No. 9 dated 11-1-56 reads thus:- "Notice under Section 13 M. L. A. already served. No objection raised against valuation given by D. Hr. Let the valuation be accepted. Requisites of S. P. already filed. Issue S. P. fixing 12-3-56 for sale at 12 noon." The next order (order No. 10 dated 12-3-56) is to the following effect:- "Sale proclamation served. Property put to sale Lot No. 1 sold for ₹ 1000/- and Lot No. II sold (for Rs.) 1163-6-9 to D. Hr. and knocked down. Pondage fee and set off petition filed, Set off allowed. To 12-4-56 for confirmation of sale and stamp." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th of January, 1956 quoted above is an order fixing the valuation under Section 13 of the Bihar Money Lenders Act by accepting the valuation put by the decree holders and is also an order directing the issuance of the sale proclamation fixing the 12th day of March, 1956, as the date for. sale. In view of the Patna amendment of Rule 66 of Order 211 of the Code, it was not necessary to give any further notice to the judgment-debtors for drawing up the sale proclamation. The said 9th order may involve in itself an order for sale under Rule 64. But it is important to note that it was passed on a day when the prohibition as to sale contained in Section 49-M of the Act was not applicable to the kasht lands of the respondent. In view of the notification published in February, 1956, however, the prohibition was there directing the Court not to sell 'the right of a raiyat, who is a member of the backward classes ........ to execution of any decree .......' My considered and definite opinion is that, on the facts of this, case, the sale of the property by the Court against the said statutory prohibition is not a judgment, order or a judicial decision deciding either directly or indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary for me to go into, and discuss the larger question of res judicata based upon the passing of a decree or an order for sale. 64. It is well settled and beyond any dispute that the statutory rule of res judicata in India is engrafted in Section 11 of the Code but it is not exhaustive. A plea of res judicata is available and bars certain proceedings or suits on the general principles of res judicata or, as they have often been called, general principles of law Or jurisprudence. These general principles of law or res judicata are not circumscribed by any statutory enactment. The principles and the limits of their applicability are to be found in various judicial decisions in this country as also in England. They are generally based upon old maxims, public policy and current legal thought. One of the questions I pose, therefore, is that, if in a proceeding it is found that there is a conflict between these unmodified principles of res judicata and a codified law based upon public policy, which is to prevail? This question has been posed and answered in different ways in two recent Full Bench decisions in AIR 1938 A P 1 and AIR I960 Mad 377. In the Full Bench decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words 'any decree' would include a decree--' such as a mortgage decree directing the sale of the property. 66. A number of authorities relating to similar statutes, expressing diverse views on the points have been referred to, and discussed in the two Full Bench decisions, namely, of the Andhra Pradesh and the Madras High Courts referred to above. The conclusions arrived at by Subba Rao, C. J., who delivered the judgment of the Full Bench of the Andhra Pradesh High Court are these :- "It is true that, if an executing Court could go behind the decree and hold that an alienation was void, it would be incongruous to hold that the decision in that suit would be res judicata in another suit. I would prefer to adhere to the strict rule barring the executing Court going behind the decree rather than to stretch the rule to a breaking point to sustain principles of public policy. Both can co-exist without doing violence to either. * * * * * * There is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public policy or statute may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic policy and to enacted law. As I conceive it, this power of the Court is not the right of a party, or the power of a party at all; though a party can invoke the exercise of this power by bringing facts to the notice of the Court, the power arises really because the conscience of the Court is stirred. Either it is undisputed by the parties, or it is indisputably established and made evident from material which is upon the same footing as decree sought to be executed, that the decree contravenes both public policy and the enacted law." * * * "The power of the executing Court to go behind the decree because it is opposed to public policy and also offends a statutory prohibition, is upon another plane altogether. It must be carefully delimited, and no executing Court can launch into what is virtually a fresh trial, because of mere allegations, or of further new material claimed to be available. To stir the conscience of the Court, material on the same footing, as the decree itself, and equally evident and indisputable, must show that the land is inalienable, and that the sale offends public policy and law. I am in entire agreement with my learned brother, that we must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nevertheless saleable (a decision which it is conceded is a nullity) is in a better position, to resist the execution of the decree than a judgment-debtor against whom the matter has not been so expressly decided. In short, the plea of res judicata can hardly be more cogent than a contention that the decree is a nullity. In my opinion it was quite open to the executing Court to examine the nature of the property directed by the decree to be sold." With utmost respect, I am also of the view that the law laid down in such broad terms with reference to Section 27 of the Santal Parganas Settlement Regulation of 1872 is not correct. I shall express and state my view with reference to the section in question a bit later. I would also like to quote here a few passages from the judgment of my learned Brother Kanhaiya Singh, J., in AIR 1956 Pat 57, who, although the final decision in that case on fact as to whether plot 106 was the raiyati land of the judgment-debtor or not is otherwise, has, in the course of the judgment observed at page 60 while considering the provisions of sections 46 and 47 of the Chotanagpur Tenancy Act:- "This section does not prohibit a Court from inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the issue of fresh sale proclamation. The case was, therefore, adjourned to 21-7-50, on which date the judgment-debtors again took time for settling the matter by compromise, and waived all irregularities in connection with the issue of fresh sale proclamation. On the adjourned date of sale, i. e., on 21-8-50 the judgment-debtors' filed a miscellaneous case challenging the proceedings in the execution on various grounds, one of which was that the house properties sought to be sold in execution of the order were not in the hands of the receiver and they, therefore, could not be sold. On 13-11-50 when the miscellaneous case came up to be beard the learned pleader on behalf of the decree-holder admitted that the properties sought to be proceeded with in the execution case were the personal properties of the judgment-debtors and that they had not been put in the hands of the receiver. In view of this admission on the question of fact, it was ultimately held by the execution Court that the decree-holder could not proceed with the execution as against the properties of the judgment-debtors which were not in the hands of the receiver. In appeal filed by the Maharajadhiraj in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by the Court itself, and if those questions are not raised at a proper stage, the bar of res judicata must be applicable. As in the present case, it is the admitted case of the parties that the house properties not being in the hands of the receiver were non-saleable, the objection raised by the judgment-debtors in this behalf is not barred by constructive res judicata." 67. If I may say so with respect, the decision in Kameshwar Singh's case is just on the line of the decision of the Supreme Court in (S) AIR 1956 SC 87. In that case in execution of a mortgage decree certain properties were sold on 14th and 15th April, 1936 and were purchased by the decree-holder himself. The sale was confirmed on 26-6-36 and possession was taken On 15-12-36. Later on in a suit instituted the main ground of attack on the sale was that the mortgage decree had directed the sale of mortgage rights under Ext. A and not of the properties. The suit was treated as a proceeding under Section 47 of the Code of Civil Procedure and it was held that the sale in excess and contravention of the mortgage decree was void and that 'an application by a party to the suit to recover possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Singh's case 1955 BLJR 273 : # (S) AIR 1955 Eat 423) decided by Choudhary, J., as I have said above, is more or less on the lines of the decision of the Supreme Court in Ramanna's case, (S) AIR 1956 SC 87, the only difference being that in the former the point of constructive res judicata was raised and, if I may say so with respect, rightly rejected and in the latter the point was not thought worth being raised. 68. It will be seen hereinafter that my conclusion will be more or less on the lines of the dicta of my learned Brethren Choudhary and Kanhaiya Singh, JJ., extracted above from the cases of Kameshwar Singh ((S) 1955 BLJR 273 : AIR 1955 Pat 423) and Chintamani. AIR 1956 Pat 57. 69. I would now refer to three English decisions, viz., Bradshaw v. McMullan. (1920) 2 IR 412 and New Brunswick Rly., Co. v. British and French Trust Corporation, Ltd. 1939 AC 1 decisions of the House of Lords, and Griffiths v. Davies 1943) 2 All ER 209 a decision of the Court of Appeal. In Bradsaw's Case, the enactment under consideration was Section 52 of the Local Government (Ireland) Act, 1898 which provided under Sub-section (1)-- "The poor-rate shall be made upon the occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, according to the plea of one of them, have contracted out of the provisions of the Irish Local Government Act, although that Act made clear to them that such contracting out was not legally permissible. They have chosen to arrange their affairs upon another footing. The plea of res judicata arises in this way, that under proceedings in a former suit the parties chose to settle on the footing of recognizing the agreement and contravening the Act, How does the law stand relative to such a plea?.....But with regard to the future, whether the debt be under a gambling contract or a contract such as the present, when the attention of Courts of Law is directed to the foundation of the demand, no decree of a court can be obtained to enforce a claim in defiance of the prohibition of a statute. T am of opinion that it would be of the worst example to sanction the introduction of the doctrine of estoppel, in any of its phases, into such a transaction. When once a Court of Justice is asked to give judicial effect to a transaction which a statute distinctly forbids, in my opinion its duty is to refuse. It ought not to do by a form of law what is essentially contrary to the law". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of 992 bonds. In regard to the dispute as to the construction of the bonds which were all Similar, a point of estoppel by record or res judicata was raised before the House on behalf of the corporation on the basis of the earlier Judgment in default. Lord Mangham rejected the Contention holding-- "In my opinion we are at least justified in holding that an estoppel based on a default judgment must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words, by the res judicata in the accurate sense. If that be the principle, the appellants are not in the present case estopped from raising any contention they think fit in an action on the 992 bonds." I would also like to quote a few lines from the speech of Lord Wright at pages 37 and 38:- "No authority has been produced in which a party has been held to be estopped from, raising in a litigation an issue which he might have raised in a previous litigation in which he allowed judgment to go by default and om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rte decree or order for sale is obtained by the plaintiff or the decree-bolder by stating such facts as, on their face, did not give protection to the defendant or the judgment-debtor on the ground of the prohibited alienation, the facts cannot Be allowed to be controverted in a subsequent proceeding or suit as those facts, right or wrong, must be deemed to have been admitted by, or decided against, the defendant or the judgment-debtor on the principles of constructive res judicata. In such a case, there is neither any estoppel against statute nor a conflict between the principles of res judicata and the law of prohibited alienation on the ground of public policy. (3) But in a case where the facts have at no point of time been in dispute--rather they are admitted and at no point of time the Court was invited to apply its mind to, and decide, the question of the applicability of the statutory prohibition to the facts of the case either by reason of the defendant or the judgment-debtor remaining ex parte at the time the decree or order for sale is made or because of his failure to raise these questions in time, he ought to be allowed to raise this question at any time before sale. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtors brought it to the notice of the court at any time before the sale that the court, in view of the provisions of Section 49M of the Act, had no power or jurisdiction to sell the property. It seems the execution court was not aware of the statutory bar made applicable to the case by notification. In those circumstances. I find it difficult to accept that by acting against the statutory command the court decided by necessary implication that it could sell the property in spite of the statutory prohibition. I will elucidate my point like this. If, after the issuance of the notification, the decree-holders would have brought the notification to the notice of the court by filing an application and still contending that, notwithstanding it, on certain grounds the court was entitled to sell the property of the judgment-debtors, the court would have been obliged to issue a fresh notice of such application to the judgment-debtors. Either in that event or if the judgment-debtors would have themselves come and brought it to the notice of the court that, in view Of the statutory bar being made applicable to the sale of their property, the court had no jurisdiction to sell it, the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that an order confirming the sale decides the saleability of the property. 73. In ILR Cal 51 (PC), the question before the Judicial Committee of the Privy Council was as to whether the 7th petition for execution of the decree filed on 22nd September, 1877, was maintainable in view of the contention raised on behalf of the judgment-debtors that the 6th petition for execution was barred by limitation. The 6th petition was filed on 5th September, 1874. Notice to show cause as to why the execution should not proceed was served on the judgment-debtors on the 23rd September, 1874. Judgment-debtors failed to show cause. Decree holders filed petition to attach properties on the 8th October, 1874, and on that date, the subordinate Judge of Maymensing passed an order 'that the attachment process be issued, fixing the 12th December next'. Sir Barnes Peacock delivering the judgment on behalf of the Board held : "But, as already observed, the Subordinate Judge had jurisdiction upon the petition of the 8th October 1874 to determine whether the decree was barred on the 8th October 1871, and he made an order that an attachment should issue. He, whether right or wrong, mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and inapplicable to the case. The matter decided by Mr. Probyn was not decided in a former suit, but in a proceeding of which the application, in which the orders reversed by the High Court were made, was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment an a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877, but upon general principles of law. If it were not binding, there would be no end to litigation. The judgment or order of Mr. Probyn was an interlocutory judgment. He merely held that, according to the propter construction of the decree of the Sadr Court, mesne profits were awarded by it....The decree of the Sadr Court, was a written document. Mr. Probyn had jurisdiction to execute that decree, and it was consequently within his jurisdiction and it was his duty to put a construction upon it. He had as much jurisdiction, upon examining the terms of the decree, to decide that it did award mesne profits as he would have ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come forward and say the whole proceedings were vitiated. That in their Lordships' opinion, cannot be allowed, and on that ground the High Court ought not to nave given effect to this objection." The paragraph following the above would show that the alleged objections were treated as a mere irregularity and there was no evidence that it was followed by a substantial injury and on that ground also the Privy Council upheld the sale. It is obvious that the decision is not based upon any principle of res judicata but is substantially based on the judgment-debtors' failure to vaise objection as to certain facts in time and therein lies the distinction between the two types of estoppel--one in Arunachellam's case 15 I A 171 (PC), and the other in the instant one, the latter being wholly covered by the well-recognised principle that there is no estoppel against statute. 76. In Raja of Ramnad v. Velusami Tevar AIR 1921 PC 23) the appellant before the Privy Council purchased the decree from the then plaintiffs and made an application to be brought on the record as assignee of the decree and to have the decree executed. The decree was barred by limitation. The matter came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 78. In consequence of that decision, another grant 'if 1920 was made. One of the questions was as to whether the decisions in the earlier suit operated us res judicata. The High Court held that it did not. Reversing this decision, Lord Thankerton held:- "Truly the third sub-section of) Section 12-A renders void any transaction to which it is applicable, but the question its to whether it applies to a particular transaction entitles the Court to consider the construction of the section and the determination of its applicability rests with the Court. The decision of the Court in the suit of 1917 determine that the section had never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned Judge which allowed him not only to express a strong contrary view as to the applicability of the section, which he was entitled to do, if he so chose, but to try anew the issue as to its applicability in face of the express prohibition, in Section 11 of the Code." The difference between Bindeswari's case AIR 1936 PC 46, decided by the Privy Council and the instant one is so marked that it requires no elaborate pointing out. There the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to be raised for the first time in argument of the appeal. Lord Simonds, delivering the judgment of the Board, has stated: "Thus there was, as it appears to their Lordships, a second clear judicial decision in proceedings, to which the present appellant and respondents were parties, that the properties in question were not liable to attachment." The assignee decree-holder, even after two clear decisions as to the liability to attachment of the property in question asked the execution court in a fresh execution case filed in 1943 for the attachment of the right, title and interest of the respondents in the property relying upon the provisions of the Act of 1938. The respondents objected on the ground of res judicata. The Subordinate Judge passed a decretal order allowing the attachment of the right, title and interest of the respondents in the property, observing that the plea of res judicata was not pressed and in any case it was not a valid plea. The respondents appealed to the High Court of Madras, the High ground that the plea of res judicata was a valid one. Upholding the decision of the High Court, Lord Simonds held :- "The Act of 1938 had come into op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot affect the question of jurisdiction of the executing Court." Mahajan and Bose, JJ. agreed with this decision. The decision of Ghulam Hasan J., with which also they agreed, is chiefly based upon the point of constructive res judicata. But with reference to the facts of the case it would be noticed that on several previous occasions in several earlier execution cases the facts and the point on which the plea of want of* jurisdiction in the executing court was founded were not raised. In that situation, the raising of the point of want of jurisdiction in the execution court in the last case was held to be barred on the principles of constructive res judicata as there was no question of inherent lack of jurisdiction in the execution court on the grounds stated by the judgment-debtors. I do not see how the decision helps us to hold that the point of the statutory prohibition to sell the property in question not having been raised before the sale must be deemed to have been decided by the holding of the sale. 82. If I am right in my view that the holding of the sale or the order accepting its bid does not operate as res judicata, it is manifest that the sale held in contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well established that the bar of res judicata is mutual; if it operates, it operates against both parties. 83. Mr. Prem Lall placed very great reliance upon the Full Bench decision of the Madras High Court in Veeraraghavayya v. Venkataraghavareddi AIR 1948 Mad 226 (FB) in support of his argument that the present application for setting aside the sale is barred under Article 166 of the Limitation Act. But counsel had to concede, in view of the decision of the Supreme Court in (S) AIR 1956 SC 87 that, if the sale in question is void, it has got to be held that the present application is not barred by limitation as it would be governed by Article 181 and not Article 166 of the Limitation Act. Eminent Judges were parties to the Full Bench decision of the Madras High Court and yet, with utmost respect, I say, I find it difficult to follow their reasoning for arriving at the conclusion that an application for setting aside such a sale would be governed by Article 166 of the Limitation Act on the parity of the reasoning that if such an application would have been filed under Order 21 Rule 91 of the Code by a purchaser for setting aside the sale, it would have been governed by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em Lall contended on the authority of AIR 1942 Lah 153 and Ramsagar Singh v. Ramajodhya Mahton AIR 1943 Pat 75 that the sale in question is voidable and not void. I am unable to accept this contention. Both these cases were concerned with the sale of a property which was not saleable under Section 60 of the Code. There is a vital distinction between selling a property which is not saleable under Section 60 of the Code and one, sale of which is prohibited by the statute on grounds of public policy; in the former case private alienation is not prohibited while in the latter even the owner of the property is not allowed to sell it except under certain circumstances and by following certain procedure of law, as in the instant case. I, therefore, hold that the sale in question is void and the application filed by the respondent for declaring it so was not barred by limitation. 85. Before I proceed to consider the question of constitutionality of Section 49M of the Act, I would like to refer to a few cases wherein it has been held or observed that an order confirming the sale decides the saleability of the property and operate as res judicata. In this connection, first, it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit giving rise to the appeal before the High Court to redeem the mortgage in favour of the defendant. The defence of the mortgagee was that the sale conveyed no title to the plaintiff as the property was inalienable. On this hypothesis the defendant had to concede that the mortgage in his favour was invalid but he relied upon a sale made to him of the property by Perumal subsequent) to the enfranchisement of the property. On these facts, a question was posed as to what was the effect of the court sale, in other words, as to whether Perumal or the defendant claiming through him could plead that the property was in fact inalienable on the date of the court sale. Venkatasubba Rao, J. answered the question thus-- "The effect of the order confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an adjudication that the property can be sold." In support of this view, the learned Judge placed reliance upon 9 C WN 972. In this case; Mitra J. decided the matter in the first instance and his decision was upheld by the Letters Patent Bench. The question discussed before the learned Judge referred 'to the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided that the land could be alienated and, perhaps, in that context, the expression used was 'the effect of the order confirming the sale is that the land can be alienated'. Some such", expression has been used by Subba Rao C. J. in the Full Bench decision of the Andhra Pradesh High Court wherein the learned Chief Justice has said at page 3 of AIR 1958 A P 1 "When a decree was made, the Court must be deemed to have decided that the said property was alienable property and, therefore, the said decree would operate as res judicata in a subsequent suit. The same reasoning would also apply, to the order of the confirmation of sale made in execution proceedings. The plaintiffs ought to have raised the plea that the items being carpenter service mains were not liable to be sold. By confirming the sale, the Court must be deemed to have held that the property was alienable and that order would operate as res judicata." Having said so, the learned Chief Justice has further observed-- "To put it differently, a decision of a Court either actual or constructive, on an issue that arises in a suit or in execution proceedings would operate as res judicata in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled tribes, and shall protect them from social injustice and all forms of exploitation'. In reply the learned Government Advocate submitted that a holder of a decree for realisation of money has no fundamental right to acquire the property of a judgment-debtor alienation or sale of which is prohibited by law. Different considerations may arise if the holder of the decree is one holding a mortgage decree for sale. The right of a member of the backward class to sell the property is not being curtailed by Section 49M and different considerations may arise if he comes and makes a grievance of the curtailment of his right to alienate his property as has been provided in Section 49C. Reliance has been placed upon the decision of the Supreme Court in Express Newspaper (Private) Ltd. v. Union of India AIR 1958 SC 578, in support of the contention that it is only legislation directly dealing with the right mentioned in Article 19(1) that was protected by it and, if the legislation was not a direct legislation on the subject the said Article would have no application, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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