MOHANLAL GOENKA v. BENOY KRISHNA MUKHERJEE AND OTHERS
Citation: [1953] 1 S.C.R. 377; 1952 INSC 71
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , SUDHI RANJAN DAS, VIVIAN BOSE, GHULAM HASAN
Judgment date:
Case summary
1952 INSC 71. Supreme Court of India judgment dated 1952-12-09. MOHANLAL GOENKA v. BENOY KRISHNA MUKHERJEE AND OTHERS. Read the judgment and case details on...
Judgment text
S. C. R. SUPREME COURT REPORTS M 0 HANLAL GO ENKA v. BENOY KRISHNA MUKHERJEE AND OTHERS. [MEHR CHAND MAHAJAN, DAs, VIVIAN BosE and GHULAM HASAN JJ. ] 377 • Res judicata-Execution proceedings-Omission to raise objec- tion to jurisdiction of executing Court-Constructive res judicata- Trnnsfer of decree for execution-Execution case dismissed for default -Executing Court sending certificate to Court which passed the decree 1mder s. 41, C. P. C. -Fresh application to executing Coiirt- 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. A decree passed by the Calcutta High Court on its Original Side in 1923, was transferred by tbat Court for execution to tbe Court of tbe Subordinate Judge of Asansol in 1931 with a certified copy of the decree, copy of the order Qf transmission and certifi- cate of partial satisfaction.
Tbe 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, l 932, and a certain colliery was pro- claimed for sale on April 3, 1933. Meanwhile, on the 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 exe- cution by public auction. After this order was communicated to the Asansol Court, it sold tbe 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 dis- missal of the execution case in· February, 1932, and the transmis- sion 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 amounting to an order of transmission of the decree to the Asansol Court for exe- cution under s. 39, Civil Procedure Code, and after the order had been communicated to the Asansol Court, the latter became fully seir-ec1 of jurisdiction as the exeeuting Court. The omission to send Dec. 9, 378 SUPREME COURT REPOR'TS [1953] 1952 a copy and a. fresh certificate of non-satisfaction was a mere irre- gularity which did not affect the jurisdiction of the Asansol Court: ].
fohanlal Per GHULAM HASAN J. -As the judgment debtor did not raise Goenka tlfe present objection either wheh the decree-holder made a second v. . application for execution to the Asansol Court in November, 1932, Benoy Knshna or when the decree-holder applied to the High Court in March, 1933, Mukherjee for giving liberty to the Asansol Court to proceed with the execu- and Others. tion by sale of the colliery, or in th0 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 pre- cluded 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 i 1'dicata. 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. Lerlgarcl cmd Another v. Bltll ([1886] 13 I. A. 134), Gltrdeo Singh v. Ohandrika Singh ([1909] I. L. R. 36 Cal. 193), Ra. jlakshrni Dasi v. Katyayanee ([1911] I. L. R. 38 Cal. 639) and Lakhmichand and Others v. Madho Rao ([1930] I. L. R. 52 All. 868). distinguished. Raghltbir Saran v. Horilal and Another ([1931] I. L. R. 53 All. 560] overruled. A1"'ada Kwmar Roy and Another v. Sheik Madan and Others (1934) (38 C. W. N. 141), Mahadeo Prasad Bhagat v. Bhagwat Narain Singh (A. LR. 1938 Pat. 428), Ram Kirpal Suknl v. Mus- samat Rnp Kueri ([1884] ll I. A. 37), Raja of Rarnnad v. Vel1tswarni Tevar ""d Others ([1921] 48 I. A. · 45) and Sha Shivraj Gopalji v. Eda. ppakath Ayissa Bi and Others (A. I. R. 1949 P. O. 302} referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 139 of 1951.
Appeal from the Judgment and Decree dated February 10, 1950, of the High Court of Judicature at Calcutta (HarriesO. J. and Sarkar J. ) in Appeal from Original Order No. 95 of 1945, aris- ing 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. O. Chatterjee (B. 0. Roy and A. K. Mukherjea, with him) for the appellant. Dr. N. 0. Sen Gupta (B. L. Pal, with him) for res- pondent No. l. S. C. R. SUPREME COURT REPORTS 379 / 1952. December 9. Das J. and Ghulam Hasan J. delivered separate judgments. The judgment of Mahajan J. and Vivian Bose J. was delivered. by MAHAJAN J. 1962 MohanZaZ GoMka v. . , . . lilanoy Eri1hna MAHAJAN J. -In our oprmons the dec1s10n can be Mukherjde rested on either of the ground, which have been and Others. raised by our brothers Das and Ghulam Hasan respecti¥ely. 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 dis- posing 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 jurisdic- tion 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 d. ocuments which had been previously transmitted by the High Court. The decree-holder on November 24, 1932, filed in the Asansol Court another petition for 1962 380 SUPREME COURT REPORTS [i953j execution of the decree against the same judgment- debtors with the same prayer for the realisation of the Mo1~an. Zal Goenka de! ;lretal amount by sale of the same properties as v. mentioned in the previous execution case. The appli- B. noy Krishna cation was registered as Execution Case No. 224 of Mukherj" 1932. 'l'he judgment-debtors' contention is that the and Oth•rs.
certificate sent by the Asansol Court to the High Das J. 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 trans- mission 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 conten- tion 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 decree- holder 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, inter alia, that the Official Receiver be discha. rged 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 datedFebruary7, 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 S. C. R. SUPREME COURT REPORTS 381 Rs. 30,437-8-0 besides a. sum of Rs.
3,500 which 190 2 had been paid on account of settled costs and states Mohanlal that the balance of the decretal amount was still Goenka due and that there had been no other adjustment v. of the decree. It refers to a previous application by Benoy Krishna tabular statement for execution of the decree by the Mukherjee appointment of a Receiver and by the sale of the and Others. Sripur colliery which was charged under the order of Das J. 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 Suib 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 st'! \Ws 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 th 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 e:;ecu¥e ~he d,ecree 11~ain in 1932? 390 SUPREME COURT REPORTS (1953] 19° 2 3. Is this Miscellaneous Case 'barred according Mohanlal to the ,principle of res judicata? Goenka ,Upon the first point the learned Subordinate Judge v.
held that the executing court did not lose jurisdic- B••0Y Kri~hna tion to execute the decree, that the allegation about M;":;t•;J" the detaching of certificate of non-satisfaction from an "'· the records in the custody of the court and its sur- Ghulam reptitious insertion in Execution Case No. 224 of Ha•an J. 1932 ·constitute grounds for a suit, and a fresh appli- cation under section 151 of the Civil Procedure Code, was not maintainable. Upon the second point the court held that having regard to the circumst·ances 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-trans- mission of the decree by the High Court was required to start Execution Case No. 224 of 1932 and that the ~xecuting court retained seisin of the execution and could execute the same without a further direc- tion from the· High Court.
Upon the third point, the learned Subordinate Judge held that Mukherjee had alleged in para. 15 of bis petition in Miscellaneous Case No. 53 of 1933 that the decree and the certifi- cate were not sent by the High Court for starting the execution case afresh, but this objection to jurisdic- tion 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 evid- ence as P. W. 4 that all bis applications were drawn up according to his instructions but despite this fac1l he did not press the allegations made in the miscell- aneous cases. · It was accordingly held on the authority of Annada. Kumar Roy and Another v. Shtik . Madan and Others(') and Mahadeo Prasad Bhagat v. Bhagwat Narain Singh (') that the principle. of constructive res judicata is applicable to execution proceedings.
The view taken by the Court was that having made the allegations in the miscellaneous cases and thim . abandoned them, the judgment-debtor \1)(1934) 38 C. W. N. 141. _ (i) A. l. R. 1938 Patna 427. • , l S. C. R. SUPREME COURT REPORTS 391 was precluded lrom raising the plea of jurisdiction of 1952 the court to. execute the decree. Mukherjee preferred Mohanlal an appeal to the High Court. The matter cam~ up Goenka before Harries C. J. and Sarkar J. The learned v. Chief Justice held that the Asausol Court not only Benoy Krishna sent what purported to be a certifica. te under section Mukkerjee 41 of the Civil Procedure Code to the High Court, and Others. ~ but intended such certificate to be a certificate Ghulam of non-satisfaction. He did not agree with the Sub- · Hasan J. -.. ordinate Judge that the document was not intended to be a certificate and was merely an intimation that the first attempt at execution had failed.
In the view of the learned Chief Justice there was no need for the Court at Asansol to send any intimation at all. The learned Chief Justice agreed that upon a true construction of section 41, failure to execute the decree at the first attempt for non-appearance of the decree-holder was not the total failure to execute the decree as contemplated in that section. He, however, held that the fact that the certificate was sent when it should not have been sent cannot affect the ques- tion 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 judioata the learned Chief Justice -.
observed that "a judgment delivered by a Court not ir competent to deliver it cannot operate as res judioata 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 judioata. " 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 Coufb had no jurisdiction in the absence of a certificate of non-1;11. tisfaction from the High Court to entertain the application. But in my view though this point was . neither made nor pressed, these orders of the learr~ed, ? ~ 392 ·SUPREME COURT REPOR'fS (1953) 1952 Subordinate Judge in the second execution applica. - Mohanlal tion cannot be urged as a bar to the present applica. - Goenka tion under the doctrine of res judioata. It is true v. tbitt section 11 of the Code of Ci vi!
Procedure does Ben'oy Krishna not apply to execution proceedings, but it has been Mukherjee held by their Lordships of the Privy Council th. at the and Oth"s. principles of the law relating to resjudioata do apply Ghulam to execution proceedings and Mr. Atul Gupta bas Hasan J,. urged that the present application is barred by res judioata ............ " 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 judioata. 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 dis- missed 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 juris- diction 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 judioata. Having heard learned counsel for the parties, we are of opinion that the appeal can be dis- posed of on the ground of res judioata without enter- ipg 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 - s. o. :R. SUPREME COURT REPORTS 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 execu- tion 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. 'l'his order clearly recites that notice was sent to the Chatterjees as well f!. S to Mukherjee and was proved by an affidavit to have been duly served upon them.
The decree-holder's prayerwas granted and in pursuance of the order of the High Court the property was sold and was purchased by the decree- holder for Rs. 20,000, whereupon Mukherjee started Miscellaneous Case ~o. 53 of 1933 for setting aside the sale. In this application (Exhibit E) the judg- ment-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. " ' · 19li2 Mohanlal Goenka v. Be. noy Krishn1t Mukherje• and Others. Ghularn Hasan J. 394 SUPREME COURT REPOR'l'S [1953j 196 2 The order of the Subordinate Judge dated·January 29, 1934, by which he set 3,side the sale does not ft. fohanlal Goenha meption that the plea raised in paragraph 19 of the v. application was pressed.
The decree-holder who was Be11ov Krishna aggrieved by this order preferred two appeals Nos. Jiukherjee 254 and 255 of 1934. The order of the High Court and Others. (Exhibit F. 2) dated July 11, 1935, shows that the Ghulani decision of the Subordinate Judge setting aside the 'i Hasan J. . sale was confirmed. It appears that the judgmen't- debtors had raised the question that the decree could f' not be executed without the decree-holder applying for making the decree absolute. In view of this dis- pute the learned Judges added in the order that although they- were conf\rming the order of the Subordinate Judge setting aside the sale, the judg- ment-debtors will not be entitled to raise any objec- · tion as to the nature of the decree which in their opinion was executable under the terms of the com- promise arrived at by the parties concerned.
F,lere again no objection was raised by the judgn,tent,debtors that the execution Court had no jurisdiction to execute the decree and sell the property. The next occasion when the objection to jurisdic- tion should have been raised was when the property was to be resold. Mukherjee started Miscellaneous Case No. 52 of 1936 on April 2, 1936, (Exhibit 1), in which he raised all sorts of objections to the execu- tion 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 sen. t to the High Court. '. l'he property was sold "I for the second time and was putchased by the decree- holder on April 22, 1936. Mukherjee preferred an appeal No. 208 of 1936 and at the same time started a Miscellaneous Case No. 80 of 1936 in the execution Co mt to set aside the sale; No plea of jurisdiction was raised either in tbe grounds of appeal to the .
High Court or in th"e application for setting aside the execution sale. The appeal was disposed of by con- sent of parties with the direction that Miscellaneous Case No. 80 of 1936 should be reheard by the -- S. C. R. · SUPREME COURT REPORTS 39£) 1952 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 Coqe Goenka Mohanlal · on April 4, 1938. The objection of lack of jurisdiction v. in the execution Court was again missing in this Benoy Krishna· application. The application was dismissed and the Mukherjee appeal against it was also dismissed on May and Other$, 25, 1938. . When 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 ng jurisdiction to entertain this application for execution without a fresh certifi- cate (sic) the court passing the decree under execution. The previous certificate creating jurisdiction in the present court has long expired after the dismissal of the previous execution case. The whole pro- ceeding and the sale thereunder is not only illegal and materially irregular but is absolutely void for want of jurisdiction. " This plea was apparently not pressed and the Miscellaneous Case was dismissed on June 30, 1938. Mukherjee filed an appeal F. M. A. No. 262 of 1938 (Exhibit F. ) on August 23, 1938, but the appeal was dismissed on August 5, 1940, on the ground that there was no material irregularity in publishing the sale and the colliery had not been sold at an inade- quate 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 (Exhi- bit 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 19:23 of the Ori- ginal Side of this Hon 'hie Court searched for ascer- taining the amount due under the decree of the said Ghulam Hasan J ... 396 SUPREME COURT REPORTS [1953) 195 • suit and came to know for the first time on 23rd August, 1940, that after dismissal of the old Execu- Mohanzaz Gosnka tio. u Case No. 296 of 1931 by the Subordinate Judge v. of Asansol on 27th February, 1932, the result of the B•noy Kri f tha. t Court also held that the law of res judioata 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 Ramnad v .. V. elusami 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 attach°'ent and alleged that the right to execute the decree was barred by limitation.
The Sub- ordinate Judge recognized the assignment, allowed the assignee to execute the d,ecree and gave his per- mission to file a fresh application for attachment. This order was not appealed against. In the final . proceedings the Subordinate Judge permitted the judgment-debtors to raise again the plea of limitation. In the course of the judgment Lord Moulton observ- ed as follows:-. (1) (r9u) 48 I. A.! 45, ~2 1952 l! fohanlal Goenka v. Bettoy Kl'ishntJ Mukherjee and Other•- Ghu! am Hasan J. 400 SUPREME COURT REPORTS [1953) 195 • "Their Lordships are of opinion that ~ was not Mohanlal open to the learned Judge to admit this plea. The Goonka · order of December 13, 1915, is. a positi-ve order v. tl:fat the present respondent should be allowed to Benoy Kr;shna execute the decree. To that order the plea . of Mukh•rjee limitation, if pleaded, would according to the res- and Othe,. s.
pondents' case have been a complete answer, and Ghulam therefore it must be taken that a decision was against IIasan J. the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. 'rheir 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 incumb·ent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon. " Sha Shivra. j Gopalji v. Edappakth Ayissa Bi and Others(') : In this case the decree-holder in . the earlier execution proceedings could have ra·ised a plea that the judgment-debtor had an interest in certain property which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed.
It was held under snch circumstances that tqe dismissal operates as res judicata in the snbsequent 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 becaute 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 2f 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. A decision in the preyious execution \! }A. LR. I9t9 P,C. 302; 5+ c,w. N, Si· > S. C. R.
SUPREME COURT REPORTS 40i case between the parties that the matter was not within the competence of the executing Court even though erroneous is llinding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami and Others (P_). The learned Chief Justice concedes that the prin- ciple of res judioata applies to the execution pro- ceedings but he refused to apply it to the present case on the ground that there was lack of inherent j. -iris- diction in the execution Court to proceed witb the execution. He relied upon Ledgard and Another v. B1ill ( 2 ). This case is distinguishable upon the facts. This was a snit instituted before the Subordinate Judge for infringement of certain exclusive righ_ts 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. 'l'he suit was transferred under section 25 of the Civil Pro- cedure 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 snit. 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 iuherent 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 j1tdi- oata arose in that case. 'l'he c:ises of Gurdeo Singh v. Ohandrikah Singh and Chandrikah Singh v, Rashbehary Singh ( 3 ) and (J) A. LR. I94'i Cal. 460. (2) (1886) 13 J. A. 134. (3) (19~9) I. L. R. 36 C"I. 191· 1952 Moh1fala! Goenka Benoy Krishna Mukherjee and Otl•er•. Ghula>n Hasan J. ' ' 402 SUPREME COURT REPORTS [1953] . I95a Rajlakshmi Dasee v. Katyayani Dasee (') are both dis- tinguishable as they did not involve any question of Mohanlal constructive res judicata. · Gosnka. • v. Two cases of theAl. lahabadHigh ,Court (1-) Lakhmi- Benoy Krishna chand and Others v. Madho Rao ( 2 ), (2) Raglmbir Mukherjee Saran and Another v. Hori Lal and Another(') and Others. were also relied upon in the judgment under appeal. Ghulam The-first was a· case of the grant of assignment of the Hasan J. 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 m,rll 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 jitdica. ta in the subsequent suit for which the certificate was obtained. It was obvious that the statutory provisions of the Act for- bade the trial of any suit without the certificate of the Collector. There was, therefore, an initial lack of jurisdiction to try the case an. d the case is inappli- cable to the facts of the present case. The second case which involved the question of territorial juris- diction was in our view not correctly decided.
There · a suit against a minor for enforcement of the mort- gage was decreed in respect of property which was beyond the territorial jurisdiction of the Court pass-' ing• the decree. When the decree was transferred for execution to the Court within whose jurrsdiction i the property was situate, it iwas 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 indepenuent suit was maintainable for avoiding the decree although no objection was raised to juris- diction in the Court passing the decree. It was also· · held that the bar Gf section 11, Explanation IV, of (1) (191t) l. L. R. 38 Cal. 6J9 (2) (1930) I. L. R. 52 All. 868, (3) (1931) I. L. R. 53 AU. 560. ... S. C. R. SUPREME COURT REPORTS 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 tfiat 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. 'rhe suit was clearly barred by the principle of res judicata and was wrongly decided. The question wQ. ich arises in the present case is not whether the execution Court jlit 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: R .. R. Biswaa. 1952 Moha71la. Goerika v Be1ioy Krishna Mukherjee and Others. Ghulam 1'lasan J.
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