Mohanlal Goenka Vs. Benoy Krishna
Mukherjee& Ors [1952] INSC 71 (9 December 1952)
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 objection 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 setting aside the sale on the ground that
after the dismissal 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.
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
respondent No. I.
379 1962. December 9. Das J. and Ghulam
Hassan J. delivered separate judgments. The judgment of Mahajan J. and Vivian
Bose J. was delivered by MAHAJAN J.
MAHAJAN J.-In our opinions the decision can
be rested on either of the ground, which have been raised by our brothers Das
and Ghulam Hasan respectively. We would therefore allow the appeal on both the
grounds.
DAS J.I have had the privilege of perusing
the judgment delivered by my learned brother Hasan and I agree with his
conclusion that this appeal should be allowed. I would, however, prefer to rest
my decision on a ground different from that which has commended itself to my
learned brother and as to which I do not wish to express any opinion on this
occasion.
The relevant facts material for the purpose
of disposing of this appeal have been very clearly and fully set forth in the
judgment of Hasan J. and I need not set them out in detail here. Suffice it to
say that on June 12, 1931, the High Court, Original Side, which is the Court
which had passed the decree, transmitted the same for execution to the Asansol
Court through -the District Judge of Burdwan and that the Asansol Court
thereupon acquired jurisdiction to execute the decree against properties
situate within its territorial limits. The application for execution made by
the decree-holder which was numbered 296 of 1931 was, however, on February 27,
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 executionof 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 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 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 subsection (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% certificate setting forth that satisfaction of the
decree hid not been obtained by execution within the jurisdiction of the Court
and a copy of the order for the execution of the decree but there is authority
to the effect that an omission to send a copy of the decree or an omission to
transmit to the' Court executing the decree the certificate referred to in
clause (b) does not prevent the decree-holder from applying for execution to
the Court to which the decree has been transmitted. Such omission does not
amount to a material irregularity within the meaning of Order XXI, rule 90, and
as such cannot be made a ground for setting aside a sale in execution. Further,
the fact remains that the certified copy of the decree and the certificate of
non satisfaction which had been sent by the High Court 2to the Asansol Court on
April 15, 1931, through the District Judge of Burdwan who forwarded the same to
the Subordinate Judge at Asansol were still lying on the records of that Court
and the sending of another certified copy of the decree and a fresh certificate
of non-satisfaction by the High Court would have been nothing more than a
formality. In the circumstances, the omission to send those documents 384 over
again to the Asansol Court was a mere irregularity which did not affect the
question of jurisdiction of the executing Court. In my opinion, after the order
made by the High Court on March 27, 1933, had been communicated to the Asansol
Court the Asansol. Court became fully seized of jurisdiction as the executing
Court and none of the proceedings had thereafter in that Court can be
questioned for lack of inherent jurisdiction.
I would, therefore, on this ground alone
accept this appeal and concur in the order proposed by my learned brother.
GHULAM HASAN J. This case is illustrative of
the difficulties which a decree-holder has to encounter in recovering the money
in execution after he has obtained the decree of court. It is one of those
cases, by no means rare, in which the execution proceedings in the courts below
have dragged on to inordinate lengths and led to consequent waste of public
time and expense to the parties.
The decree in the present case was passed
upon a compromise in Suit No. 1518 of 1923 on the original :side of the
Calcutta High Court as long ago as June 25, 1923, in favour of one Nagarmull
Rajghoria against Pran Krishna Chatterjee and 5 others, hereinafter referred to
as the Chatterjees.
The decree was for a sum of Rs. 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 becameentitled 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 application for
execution of the decree by sale of Sripur colliery. The execution case is
numbered as 296 of 1931.
Notices under Order XXI, rule 22, rule 64 and
rule 66, of the Civil Procedure Code were issued and served on various dates.
The case was fixed for February 16,'1932. On this date Nagarmull applied for
time to prove service of the notices and the case was adjourned to February 23
1932. He again applied for time on that date and the case was adjourned to
February 27, 1932. On this latter date Nagarmull was again not ready and asked for
more time. But this was refused, and the execution case was dismissed for
default without any amount being realized under the decree.
The transferee court sent to the High Court
what purported to be a certificate under section 41 of the Civil Procedure Code,
stating that the execution case was dismissed for default on February 27, 1932.
Neither the copy of the decree, nor any covering letter as required by the
rules of the High Court was sent along with the certificate. The certificate
was received by the High Court on March 11, 1932.
It appears that the decree-holder filed a
second application for execution of the decree on November 24, 1932, by sale of
the Sripur colliery. This case was numbered as Execution Case 224 of 1932.
Notices under Order XXI, rule 22 and rule 66, 'of the Civil Procedure Code were
duly served and the executing court ordered the issue of a sale proclamation
fixing April 8, 1933, as the date of the sale, It 386 appears that the
decree-holder received only partial satisfaction of the decree out of the sale
proceeds of Koradanga colliery which had been sold at the instance of the
superior landlords and by certain cash payments. He applied for execution of
the decree by appointment of a Receiver and by sale of the Sripur colliery. The
Receiver was appointed on June 21, 1926, and he was directed to sell the Sripur
colliery to the highest bidder permitting the decree-holder at the same time to
bid for and purchase the property, but he was restrained from proceeding with
the sale by an order of court passed in a certain suit filed by Mukherjeo
against the decree-holder. This suit was dismissed by the High Court.
Accordingly the. decree-holder applied on March 17, 1933, to the High Court
praying that the Receiver be discharged and leave be given to the executing
court to sell the Sripur colliery in execution of the -decree of June 25, 1923,
in which Execution Proceedings No. 224 of -1 932 were pending at the time. He
also asked:
that leave be given to him to bid for and to,
purchase the property. Notices of this application were duly served on the
parties and on March 27, 1933, the High Court granted all the , prayers
(Exhibit F. 5). The property was sold on the 9th of June, 1933, and was
purchased by the decreeholder 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 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 nonsatisfaotion 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 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 nonappearance 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 disposed of on the ground of res judicata without entering
into other questions.
It cannot be disputed that the transferee
Court was invested with jurisdiction by the High Court when its decree was
transferred to it for execution. The first application for execution of the
decree was dismissed 393 for default on February 27, 1932, and a document
purporting to be a certificate of non-satisfaction under section 41 of the
Civil Procedure Code was sent by the execution Court to the High Court. The
decree was admittedly not retransmitted for execution by the High Court.
Despite this fact the decree holder made a second application for execution on
November 24, 1932, (Execution Case No. 224 of 1932). Notice was duly served
upon the judgment debtor 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 judgment debtor 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 decreeholder'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 judgmentdebtors will not be
entitled to raise any objection as to the nature of the decree which in their
opinion was executable under the terms of the compromise arrived at by the
parties concerned. Here again no objection was raised by the judgment-debtors
that the execution Court had no jurisdiction to execute the decree and sell the
property.
The next occasion when the objection to
jurisdiction should have been raised was when the property was to be resold.
Mukherjee started Miscellaneous Case No. 62 of 1936 on April 2, 1936, (Exhibit
1), in which he raised all sorts of objections to the execution but nowhere stated
that the execution Court had no jurisdiction to sell the property after the
certificate under section 41 of the Civil Procedure Code had been sent to the
High Court. The property was sold for the second time and was purchased by the
decree holder 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 there under 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 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 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. 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
admitted that the two applications (Exhibits E and E. 4) were prepared
according to his instructions. It is not possible therefore for the judgment debtor
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 wasdismissed 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 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 respondents' 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 judgmentdebtor 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 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 distinguishable 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 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.
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