Mohanlal Goenka vs Benoy Krishna Mukherjee and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 139 of 1951

Decision Date: 9 December 1952

Coram: Mehr Chand Mahajan, Vivian Bose, Ghulam Hasan

In this matter the petitioner Mohanlal Goenka challenged the actions of the respondents Benoy Krishna Mukherjee and others. The judgment was delivered on 9 December 1952 by a bench of the Supreme Court of India whose members were Justice Mehr Chand Mahajan, Justice Vivian Bose and Justice Ghulam Hasan. The case is reported in 1953 AIR 65 and 1953 SCR 377, and it has been subsequently cited in later authorities including R 1974 SC 994 (94) RF, 1988 SC 375 (28) RF, and 1991 SC 2234 (43). The issues concerned the doctrine of res judicata, the scope of execution proceedings, the effect of an omission to raise an objection to the jurisdiction of the executing court, the principle of constructive res judicata, the transfer of a decree for execution, and the validity of a dismissal of an execution case for default. The court also examined whether an order of the court that passed the decree, which permitted execution, had any legal effect, and it considered the relevance of sections 11, 39 and 41 of the Civil Procedure Code, 1908. The headnote summarized the factual background as follows: a decree issued by the Calcutta High Court on its original side in 1923 was transferred by that court for execution to the Subordinate Judge’s Court at Asansol in 1931, together with a certified copy of the decree, the order of transmission and a certificate of partial satisfaction. The decree-holder filed an execution application in the Asansol court, but the application was dismissed for default in February 1932. The Asansol court then sent to the Calcutta High Court a document claimed to be a certificate under section 41 of the Code, stating that the execution case had been dismissed for default; however, neither the certified copy of the decree nor any covering letter accompanied the certificate. A second execution application was made by the decree-holder in November 1932, after which a colliery was proclaimed for sale on 3 April 1933. In the meantime, the Calcutta High Court, on 27 March 1933, discharged a receiver appointed in 1926 and granted liberty to the Asansol court to sell the colliery by public auction. Following that order, the Asansol court proceeded with the auction, but the sale was set aside, the colliery was re-sold, and the sale was again set aside. After the third sale, the judgment debtor filed an application under sections 47 and 21 of the Code, and Order 90 of the Rules, seeking to set aside the sale on the ground that, after the execution case had been dismissed in February 1932 and a certificate under section 41 had been transmitted to the High Court, the Asansol court no longer possessed jurisdiction to execute the decree.

The Court held, delivering the opinion of Justice Das, that the order of the Calcutta High Court dated 27 March 1933 could in substance be regarded as an order of transmission of the decree to the Asansol court for execution under section 39 of the Civil Procedure Code. Once that order had been communicated to the Asansol court, that court became fully seized of the jurisdiction as the executing court. The Court further observed that the failure to forward a copy of the decree and to issue a fresh certificate of non-satisfaction constituted only an irregularity and did not affect the jurisdiction of the Asansol court. This view was supported by Justice Ghulam Hasan, who noted that the judgment debtor had not raised the objection concerning jurisdiction when the decree-holder made the second execution application in November 1932, nor when the decree-holder sought liberty from the High Court in March 1933, nor during the proceedings for setting aside the sales in 1936, nor in the appeals thereafter, despite raising several other objections. On the few occasions when the debtor did raise the jurisdictional objection, he never pursued it with vigor. Consequently, the Court applied the principle of constructive res judicata, precluding the debtor from raising the plea at a later stage. The Court concluded that the mere existence of a jurisdictional question did not defeat the operation of the rule of res judicata. The opinions of Justices Mahajan and Vivian Bose concurred with the reasoning set out by Justices Das and Ghulam Hasan, reinforcing the conclusion that the Asansol court retained valid jurisdiction to execute the decree despite the procedural irregularities alleged by the debtor.

In the present case the Court observed that the judgment debtor had never raised the objection concerning the jurisdiction of the Asansol Court at any of the earlier stages of the proceedings. He did not raise the objection when the decree-holder made a second application for execution before the Asansol Court in November 1932, nor when the decree-holder sought the High Court’s permission in March 1933 to allow the Asansol Court to proceed with the sale of the colliery, and he also omitted to raise it during the proceedings that sought to set aside the sales of the colliery in 1936 as well as in the appeals that followed, even though several other objections were presented at those times. On the rare occasions when the judgment debtor did attempt to raise the jurisdictional objection, he never pursued it with any vigor. Consequently, the Court held that the doctrine of constructive res judicata barred him from advancing the plea at a later stage. The Court further clarified that the mere fact that the issue pertained to the jurisdiction of the Court did not exempt it from the operation of the rule of res judicata. The judgment of Mahajan and Vivian Bose JJ affirmed that, on either of the grounds articulated by Justice Das and Justice Ghulam Hasan, the judgment debtor was precluded from invoking the contention that the Asansol Court lacked jurisdiction to execute the decree. The Court distinguished several earlier authorities, namely Ledgard and Another v. Bull, Gurdeo Singh v. Chandrika Singh, Rajlakshmi Dasi v. Katyayannee, and Lakhmichand and others v. Madho Rao, while expressly overruling Raghubir Saran v. Horilal and Another. Additional cases that were referred to included Annada Kumar Boy and Another v. Sheik Madan and Others, Mahadeo Prasad Bhagat v. Bhagwat Narain Singh, Bam Kirpal Sukul v. Mussamat Rup Kueri, Raja of Ramnad v. Veluswami Tevar and Others, and Sha Shivraj Gopalji v. Edappakath Ayissa Bi and Others. The judgment then set out the procedural posture of the appeal: it was a civil appeal under appellate jurisdiction, numbered 139 of 1951, arising from a judgment and decree dated 10 February 1960 handed down by the High Court of Judicature at Calcutta, which itself was an appeal from an original order dated 30 January 1945 issued by the Subordinate Judge at Asansol in Miscellaneous Case No. 70 of 1941. Counsel for the appellant comprised N. C. Chatterjee with assistants, while Dr. N. C. Sen Gupta appeared for the respondent. Justices Das and Ghulam Hasan delivered separate opinions, and the judgment of Justices Mahajan and Vivian Bose was delivered by Justice Mahajan. Justice Mahajan concluded that the appeal could be sustained on either of the grounds advanced by his colleagues, and accordingly, he allowed the appeal on both grounds. Justice Das, after reviewing his brother’s judgment, expressed agreement with the reasoning presented therein.

The judge concluded that the appeal required allowance, but chose to base the decision on a different reasoning than that adopted by the fellow judge, and expressly refrained from commenting on that alternate basis at this time. The essential facts necessary for adjudicating the appeal had already been set out in great detail by the judgment of the other judge; therefore a full recitation was unnecessary. In brief, on 12 June 1931 the Original Side of the High Court, which had originally passed the decree, transmitted the decree to the Asansol Court for execution via the District Judge of Burdwan. By that transmission the Asansol Court obtained the authority to enforce the decree against any property located within its territorial jurisdiction. The decree-holder subsequently filed an execution application numbered 296 of 1931, but the Asansol Court dismissed that application for default on 27 February 1932. On 11 March 1932 the Asansol Court sent to the High Court a document purporting to be a certificate under section 41 of the Code. The High Court never received from the Asansol Court the certified copy of the decree together with the other documents that had originally been transmitted. On 24 November 1932 the decree-holder lodged another petition for execution in the Asansol Court, seeking enforcement of the same decree against the same judgment debtors and requesting sale of the same properties as in the earlier case. This second petition was entered as Execution Case No 224 of 1932. The judgment debtors argued that the certificate sent on 11 March 1932 was intended to be a proper certificate under section 41 and that, consequently, the Asansol Court lost its jurisdiction as an executing court. They further contended that because the High Court had not newly transmitted the decree, the Asansol Court could not entertain Execution Case No 224 of 1932, and that all subsequent proceedings in that court were void for lack of inherent jurisdiction. The Subordinate Judge of the Asansol Court rejected this contention in his judgment dated 30 January 1945 in Miscellaneous Case No 70 of 1941, but the High Court accepted the argument in its judgment of 10 February 1950, which is now before the appellate court. It appeared that on 17 March 1933 the decree-holder filed a master's summons in the Original Side of the High Court—the court that had originally passed the decree in Suit No 1518 of 1923—seeking, among other reliefs, the discharge of the Official Receiver from further duties, leave for the Asansol Court to sell the colliery in execution of the decree dated 25 June 1923, and permission for the plaintiff to bid for and purchase the Sripur colliery.

The plaintiff sought an order dated 7 February 1924 and requested that the court grant leave for the plaintiff to bid for and purchase the Sripur colliery. The master's summons supporting this request was accompanied by an affidavit sworn by Pramatha Nath Roy Chowdhury, who was employed as an assistant of the plaintiff. The affidavit referred to the consent decree issued on 25 January 1923 in the original suit and to the additional settlement terms embodied in the order of 7 February 1924. It recorded that the judgment-debtors had made payments amounting to Rs 30,437-8-0 together with a sum of Rs 3,500 paid toward settled costs. The affidavit further stated that the balance of the decree amount remained outstanding and that no other adjustment of the decree had taken place. It mentioned a prior application made by a tabular statement for execution of the decree, which sought the appointment of a Receiver and the sale of the Sripur colliery as charged under the order of 7 February 1924. The High Court, on 21 June 1926, had responded to that tabular statement by appointing the Official Receiver of the High Court as Receiver of the Sripur colliery. The affidavit thereafter recounted that the Official Receiver, having been authorized to sell the colliery on certain terms, attempted to put the colliery up for sale but was prevented from doing so because one of the judgment-debtors, Benoy Krishna Mukherjee, obtained an injunction in Suit No. 843 of 1928. The affidavit noted that Suit No. 843 of 1928 had subsequently been dismissed, that no appeal had been filed against the dismissal decree, and that no order had been issued to stay the execution of that decree.

Paragraph 13 of the same affidavit declared that the plaintiff had been advised to enforce the charge and to sell the Sripur colliery in execution of the order by the Asansol Court, which possessed local jurisdiction over the colliery. Accordingly, by an order dated 15 April 1931, the plaintiff obtained leave from that court to execute the decree against Basantidas Chatterjee, Srimantodas Chatterjee and Bholanath Chatterjee—identified as the sons, heirs and legal representatives of the deceased Prankristo Chatterjee—and against the other defendants who were judgment-debtors. The plaintiff caused certified copies of the decree dated 25 June 1923 and the order dated 7 February 1924 to be transmitted to the District Judge at Burdwan, who then forwarded the decree to the Subordinate Judge of Asansol for execution. The execution proceedings are presently pending before the Asansol Subordinate Judge’s Court as Execution Proceedings No. 224 of 1932. In view of these circumstances, the plaintiffs requested the court to grant directions on the same lines as those mentioned in the summons. The summons had been duly served on all the judgment-debtors, as evidenced by the affidavit of service filed in court and referred to in the order.

On March 27 1933 the High Court issued an order in response to a master’s summons. The operative portion of that order stated that the Official Receiver who had been appointed in the suit concerning the Sripur colliery, pursuant to the order dated 21 June 1926, was hereby discharged from any further duties as Receiver. The order further required the Receiver to present his final accounts before one of the Judges of the High Court. It also authorised the Subordinate Judge of Asansol, in executing the decree and the order dated 7 February 1924, to sell the Sripur colliery either by public auction or by private treaty to the highest bidder, provided the Subordinate Judge was satisfied that a sufficient sum had been offered as stipulated in the order of 7 February 1924. In addition, the order permitted the plaintiff to bid for and, if successful, to purchase the colliery at that sale, and to set-off the purchase price proportionately against the balance of his claim under the decree. The plaintiff was likewise allowed to include his costs and any expenses incidental to the application, to be taxed by the Court’s Taxing Officer, in his claim under the decree. Although the complete order sheet of Execution Case No. 224 of 1932 was not reproduced in full, there can be no doubt that the High Court’s order was communicated to the Asansol Court, because following that communication the Asansol Court proceeded with the execution proceedings. Consequently, the Sripur colliery was sold for the first time on 9 June 1933, and the decree-holder purchased it for a sum of Rs 20,000. That sale was later set aside. The High Court’s order, issued by the Court that originally passed the decree in Suit No. 1518 of 1923, is seen as effectively transmitting the decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure. Section 39 does not prescribe a specific form for an application seeking transmission of a decree, and subsection (2) even permits a court to forward the decree suo moto to another court for execution. Moreover, Order XXI, rule 6, requires that a court sending a decree for execution must also send a copy of the decree together with a certificate stating that the decree has not been satisfied by execution within the jurisdiction of the sending court.

The Court observed that although the law requires a copy of the decree and a copy of the order authorising execution to be sent to the Court that will carry out the decree, there is authority indicating that a failure to forward either the copy of the decree or the certificate stating that the decree has not been satisfied in that Court does not bar the decree-holder from applying for execution before the Court to which the decree has been transmitted. Such a failure, the Court held, does not constitute a material irregularity within the meaning of Order XXI, rule 90, and therefore cannot be invoked as a ground for setting aside a sale in execution. The record showed that the High Court had, on 15 April 1931, dispatched a certified copy of the decree together with a certificate of non-satisfaction to the Asansol Court through the District Judge of Burdwan, who then forwarded the documents to the Subordinate Judge at Asansol. Those documents remained on the record of the Asansol Court. Consequently, the issuance of another certified copy of the decree and a fresh certificate of non-satisfaction by the High Court would have been merely a procedural formality. In the circumstances, the Court concluded that the omission to resend those documents to the Asansol Court was a trivial irregularity that did not affect the jurisdiction of the executing Court. After the High Court’s order dated 27 March 1933 had been communicated to the Asansol Court, that Court became fully vested with jurisdiction as the executing Court, and none of the subsequent proceedings before it could be challenged on the basis of a lack of inherent jurisdiction. On this basis, the Court accepted the appeal and concurred with the order proposed by the learned brother.

Ghulam Hasan J. noted that the present case exemplifies the difficulties a decree-holder may face in recovering money through execution after obtaining a decree. He remarked that such cases are not uncommon and that execution proceedings in lower courts can become protracted, resulting in a waste of public time and unnecessary expense to the parties. The decree in question originated from a compromise in Suit No. 1518 of 1923, decided on the original side of the Calcutta High Court on 25 June 1923, in favour of Nagarmull Rajghoria against Pran Krishna Chatterjee and five other respondents, hereafter referred to as the Chatterjees. The decree granted the plaintiff a sum of Rs 75,000 together with interest at the rate of twelve per cent per annum, payable in quarterly instalments. To secure payment of the decretal amount, the Chatterjees hypothecated their Kbradauga colliery. Subsequently, on 24 January 1924, the Chatterjees entered into an agreement with Benoy Krishna Mukherjee, hereafter referred to as Mukherjee, appointing him as the managing agent of the said colliery and thereby entitling him to receive royalties from another colliery known as Sripur colliery. The decree was later adjusted on 18 March 1924 by making Mukherjee liable as surety and by charging the Chatterjees’ Sripur colliery as additional security. The hypothecated properties were located at Asansol, and Nagarmull obtained an order from the High Court permitting execution of the decree at Asansol, directing that a certified copy of the decree, a copy of the order of transmission, and a certificate of partial satisfaction be transferred to the Subordinate Judge’s Court at Asansol. This order was issued on 15 April 1931, and the three documents were sent to the receiving court at Asansol through the District Judge of Burdwan on 12 June 1931, in accordance with Order XXI, rule 6 of the Civil Procedure Code.

In respect of the decree, the Chatterjees had charged the Sripur colliery as additional security while also making the party named Mukherjee stand as surety. The properties that were hypothecated were situated at Asansol. Subsequently Nagarmull obtained an order from the High Court granting permission to execute the decree at Asansol. The order directed that a certified copy of the decree, a copy of the order of transmission and a certificate of partial satisfaction of the decree be transmitted to the court of the Subordinate Judge at Asansol. The High Court passed this order on 15 April 1931. In compliance with the order, the three documents were forwarded to the transferee court at Asansol through the District Judge of Burdwan on 12 June 1931, in accordance with Order XXI, rule 6 of the Civil Procedure Code. On 20 August 1931, Nagarmull filed his first application for execution of the decree, seeking sale of the Sripur colliery; the execution proceeding was recorded as case number 296 of 1931. Notices were issued and served under Order XXI, rules 22, 64 and 66 of the Code on various dates, and the matter was fixed for hearing on 16 February 1932. On that date Nagarmull asked for additional time to prove service of the notices, and the court adjourned the matter to 23 February 1932. He again applied for time on 23 February, leading to a further adjournment to 27 February 1932. When the matter came up on 27 February, Nagarmull was still not ready and requested further time, but the request was denied. Consequently, the court dismissed the execution case for default, and no amount was realized under the decree. The transferee court then sent to the High Court a document purporting to be a certificate under section 41 of the Civil Procedure Code, stating that the execution case had been dismissed for default on 27 February 1932. The certificate was sent without the accompanying certified copy of the decree or any covering letter required by the High Court’s rules, and the High Court received it on 11 March 1932.

Later, the decree-holder filed a second application for execution of the decree on 24 November 1932, again seeking sale of the Sripur colliery; this proceeding was recorded as Execution Case 224 of 1932. Notices under Order XXI, rules 22 and 66 of the Code were duly served, and the executing court issued a sale proclamation fixing 8 April 1933 as the date of the sale. It appears that from the sale of the Koradanga colliery, which had been sold at the instance of the superior landlords, the decree-holder obtained only a partial satisfaction of the decree together with certain cash payments. The decree-holder then applied for execution of the decree by the appointment of a Receiver and by sale of the Sripur colliery. A Receiver had previously been appointed on 21 June 1926 and was directed to sell the Sripur colliery to the highest bidder, while allowing the decree-holder himself to bid and purchase the property. However, the Receiver was restrained from proceeding with the sale by an order of the court passed in a suit filed by Mukherjee. This restraining order prevented the sale from moving forward despite the earlier directions.

In the proceedings brought by the decree-holder, the suit that had been filed against him was dismissed by the High Court. Following that dismissal, the decree-holder filed an application before the High Court on 17 March 1933, requesting that the Receiver appointed under the earlier decree be discharged and that the executing court be authorised to sell the Sripur colliery in accordance with the decree dated 25 June 1923, while the execution proceedings numbered 224 of 1932 were still pending. The decree-holder also sought leave to submit his own bid for the property and, if successful, to purchase it. Notices of this application were duly served upon all parties, and on 27 March 1933 the High Court granted every prayer contained in the application, as recorded in Exhibit F-5. Consequently, the Sripur colliery was put up for sale on 9 June 1933, and the decree-holder acquired the property for a sum of Rs 20,000. Shortly thereafter, on 7 July 1933, Mukherjee filed an application under section 47 of the Civil Procedure Code together with Order XXI, rule 90, seeking to set aside that sale; the application was entered as Miscellaneous Case No. 63 of 1933. On the next day, 8 July 1933, the Chatterjee parties initiated two further miscellaneous proceedings, identified as Cases Nos. 64 and 55 of 1933. While these three miscellaneous matters were still pending, the appellant Mohanlal Goenka purchased the decree on 10 January 1934. The court eventually allowed Miscellaneous Case No. 53 of 1933 and, on 29 January 1934, set aside the June 1933 sale. The other two cases, Nos. 54 and 55 of 1933, were dismissed for default. The outcomes of these miscellaneous cases were communicated to the High Court by a document purporting to be a certificate under section 41 of the Civil Procedure Code, which the High Court received on 1 February 1934. Thereafter, the decree-holder filed two appeals on 18 April 1934; the High Court confirmed the order that had set aside the earlier sale and directed that the Sripur properties be resold. Accordingly, a second sale was conducted on 22 April 1936, at which the decree-holder again purchased the colliery, this time for Rs 12,000.

During the pendency of an appeal filed by Mukherjee in the High Court, Mukherjee also lodged an application under section 47 and Order XXI, rule 90 of the Civil Procedure Code, seeking to annul the April 1936 sale. The parties consented to dispose of the appeal, agreeing that the application under Order XXI, rule 90 should be heard by the executing court. The executing court heard the application and set aside the sale. Subsequently, on 4 April 1938, Mukherjee made another application under section 47, contending that Mohanlal Goenka could not continue the proceedings that had been initiated by Nagarmull. That application was dismissed, and the court fixed 22 May 1938 as the date for a further sale of the property. Mukherjee then appealed this dismissal in the High Court, but the appeal was rejected under Order XLI, rule II of the Civil Procedure Code. The property was again sold, this time for the third occasion, on 27 May 1938, and the decree-holder purchased it for Rs 2,60,000. Finally, Mukherjee filed another application on 27 June 1938, again invoking section 47 and Order XXI, rule 90 of the Civil Procedure Code, with the aim of setting aside this third sale, as recorded in the miscellaneous proceedings referenced as (E-4).

In the matter designated as Case No 76 of 1938, the application that Mukherjee had filed was dismissed on 30 June 1938 and the sale of the property was subsequently confirmed. An earlier proceeding, Execution Case No 224 of 1932, had been dismissed only for part satisfaction of the decree. On 9 July 1938 the executing court forwarded to the High Court a certificate issued under section 41 of the Civil Procedure Code together with a covering letter that set out the result of the execution case; the High Court recorded receipt of these documents on 12 July 1938. Mukherjee then appealed the decision to the High Court, but that appeal was dismissed on 5 August 1940 (see Exhibit F). Following that dismissal, Mukherjee filed a review application under Order XLVII, rule 1 of the Civil Procedure Code on 25 November 1940 (Exhibit B) and, on 28 November 1940, he also applied for leave to appeal to the Privy Council (Exhibit A). The review application was rejected on 8 May 1941 and the request for leave to appeal was refused on 16 June 1941. Thereafter, on 12 May 1941, Mukherjee lodged an application under sections 47 and 151 of the Civil Procedure Code, recorded as Miscellaneous Case No 70 of 1941; this application forms the foundation of the present appeal before the Court. The application was supported by an affidavit filed on 26 May 1941. The present appellant entered an objection to the application on 5 July 1941. The Subordinate Judge dismissed Mukherjee’s application on 30 January 1945, but the High Court set aside that order on 10 February 1950. Finally, the High Court granted leave to appeal to this Court on 28 July 1950.

Before the Subordinate Judge, Mukherjee advanced the case that after the dismissal of Execution Case No 296 of 1931 on 27 February 1932 and the transmission of a certificate under section 41 to the High Court, the decree was never again transferred to the Asansol Court for execution. He asserted that the decree-holder had fraudulently removed the certificate of non-satisfaction from Execution Case No 296 of 1931 and affixed it to the later Execution Case No 224 of 1932, thereby inducing the court to believe that a fresh certificate had been obtained from the High Court for new execution proceedings. Mukherjee further explained that he had instituted Title Suit No 3 of 1936 in order to recover a sum of money, to enforce a charge against the Sripur Colliery, and to obtain permission to redeem the charge declared in favour of the decree-holder if that charge preceded his own claim. The trial court dismissed the suit, but on appeal the High Court allowed him to redeem the charge in favour of the decree-holder. To determine the amount of the charge, Mukherjee instructed his attorney to examine the records of Suit No 1518 of 1923. During that search, he learned for the first time on 23 August 1940 that after the dismissal of the first application, the certificate under section 41 had been sent by the Asansol Court to the High Court, and the High Court had subsequently …

In this case the judgment-debtor argued that the decree had never been retransmitted for execution, and therefore the Asansol Court lacked authority to entertain Execution Case No 224 of 1932, rendering all related proceedings void. He consequently prayed that the auction sale be set aside. The appellant denied these allegations. He contended that no certificate under section 41 of the Civil Procedure Code had ever been sent to the High Court in the earlier Execution Case No 296 of 1931, and that consequently the execution court retained its jurisdiction throughout. He further asserted that the High Court had authorized the sale of the property in execution of the decree and that a fresh certificate of non-satisfaction was not necessary to confer jurisdiction on the Asansol Court to proceed with Execution Case No 224 of 1932. The appellant also maintained that the judgment-debtor was aware that the copy of the decree and the certificate of non-satisfaction had not been forwarded to the High Court, and therefore could not have been misled into believing that a new certificate had been sent for fresh execution proceedings. He claimed that no fraud had been committed by the decree-holder. Additionally, the appellant pleaded that the petition was barred by limitation and by the principle of res judicata, because the objection had either been previously raised and not pursued, or had been rejected, and because the judgment-debtor was fully cognizant of all the proceedings concerning the decree. The Subordinate Judge identified three principal issues for determination: first, whether the present Miscellaneous Case was maintainable under section 151 of the Civil Procedure Code; second, whether the court had acted in accordance with section 41 of the Code, including whether the decree had been retransmitted for fresh execution in 1932 and, if not, whether the court possessed jurisdiction to execute the decree again in that year; and third, whether the Miscellaneous Case was barred by the doctrine of res judicata. On the first issue the Judge held that the executing court had not lost its jurisdiction to enforce the decree and that the alleged removal of the certificate of non-satisfaction from the court’s records and its secret insertion into Execution Case No 224 of 1932 constituted sufficient ground for a suit, rendering a fresh application under section 151 not maintainable. Regarding the second issue, the Judge concluded that, considering the facts, no certificate of non-satisfaction required by section 41 had been sent to the High Court, that no retransmission of the decree by the High Court was necessary to commence Execution Case No 224 of 1932, and that the executing court retained possession of the execution and could proceed without further direction from the High Court. Finally, on the third issue, the Judge observed that the judgment-debtor had raised the same jurisdictional objection in paragraph 15 of his petition in the Miscellaneous Case No 53 of 1933 and again in paragraph 20 of his petition in Miscellaneous Case No 76 of 1938, but had failed to press the objection at the time of those hearings, leading the Judge to hold that the principle of res judicata applied.

In this matter the Court noted that Mukherjee, in his petition numbered 53 of 1933, claimed that neither the decree nor the certificate had been forwarded by the High Court to commence a fresh execution proceeding, yet he did not press that jurisdictional objection during the hearing. The Court further observed that in paragraph 20 of Mukherjee’s petition in Miscellaneous Case No. 76 of 1938 he again raised the same point, but again failed to press it. Mukherjee, appearing as plaintiff-witness 4, admitted that all of his applications had been prepared in accordance with his own instructions, but despite this admission he did not advance the allegations he had set out in the miscellaneous cases. Relying on the authorities Annada Kumar Roy and Another v. Sheik Madan and Others (1) and Mahadeo Prasad Bhagat v. Bhagwat Narain Singh (2), the Court held that the doctrine of constructive res judicata applied to execution proceedings. The Court reasoned that because Mukherjee had once made the allegations in the miscellaneous suits and then abandoned them, the judgment-debtor was consequently barred from later asserting a jurisdictional plea to execute the decree. Mukherjee appealed this conclusion to the High Court, where the matter was argued before Chief Justice Harries and Justice Sarkar. The learned Chief Justice held that the Asansol Court had not only transmitted what it termed a certificate under section 41 of the Civil Procedure Code to the High Court, but had intended that document to serve as a certificate of non-satisfaction. He disagreed with the Subordinate Judge’s view that the document was merely an intimation that the first attempt at execution had failed, stating that no such intimation was required at all. The Chief Justice further explained that, when section 41 is correctly construed, a failure to execute the decree on the first attempt because the decree-holder did not appear does not constitute a total failure to execute the decree as contemplated by that provision. Nevertheless, he held that the improper sending of the certificate could not alter the question of whether the certificate was intended as a certificate of non-satisfaction. Citing a range of authorities, he concluded that the Asansol Court had lost jurisdiction to execute the decree and was not entitled to entertain a second execution application. Regarding the principle of res judicata, the Chief Justice observed that a judgment rendered by a court lacking competence cannot operate as res judicata, and that the order of the Subordinate Judge of Asansol, being wholly without jurisdiction, could not be relied upon to raise a defence based on res judicata. He added that, although the appellant could and should have raised the jurisdictional question in the second execution case—specifically, that the Asansol Court lacked jurisdiction in the absence of a certificate of non-satisfaction from the High Court—this point was neither made nor pressed, and therefore the subordinate judge’s orders could not be invoked as a bar to the present application.

It was held that the execution court could not entertain the present application because it lacked a certificate of non-satisfaction issued by the High Court. Nevertheless, the Court observed that this point had not been formally raised or argued before it, and therefore the orders made by the learned Subordinate Judge in the second execution application could not be invoked as a defence on the ground of res judicata. Although section 11 of the Code of Civil Procedure does not apply to execution proceedings, the Court noted that the Privy Council had previously affirmed that the general principles of res judicata are applicable to execution cases. Counsel for the petitioner, identified as Mr Atul Gupta, contended that the present application was precluded by the doctrine of res judicata. The Court distinguished between an irregular assumption of jurisdiction and a lack of inherent jurisdiction, concluding that the order of the Subordinate Judge at Asansol fell within the latter category. Accordingly, the Court declared that the order was wholly void and could not be used as a bar to the current application on the basis of res judicata.

The appellant, who was the assignee decree-holder, argued that the Asansol execution court never lost its jurisdiction over the execution proceedings. According to that argument, the document described as a certificate under section 41 of the Code of Civil Procedure was merely an intimation to the High Court that the execution case had been dismissed for default, and not a failure to execute the decree within the meaning of section 41. The appellant further submitted that subsequent orders of the High Court, issued in the presence of the parties, restored jurisdiction to the execution court, and that any question as to jurisdiction was itself barred by res judicata. After hearing counsel for both sides, the Court expressed the view that the appeal could be disposed of on the ground of res judicata without addressing the remaining issues. The Court affirmed that the transferee court had been duly invested with jurisdiction by the High Court when the decree was transferred for execution. The first execution application had been dismissed for default on 27 February 1932, and the execution court had forwarded a document purporting to be a section 41 certificate of non-satisfaction to the High Court. The High Court did not retransmit the decree for further execution. Nonetheless, the decree-holder filed a second execution application on 24 November 1932 (Execution Case No 224 of 1932). Proper notice was served on the judgment debtor, who made no objection to the execution court’s jurisdiction at that time. The Court noted that this was the first opportunity for the debtor to raise a jurisdictional plea; a second opportunity later arose, but the earlier failure to object precluded reliance on res judicata to bar the present application.

In March 1933 the holder of the decree submitted an affidavit, identified as Exhibit C, to the High Court seeking directions that the execution Court be ordered to sell the Sripur properties and to discharge the Receiver. The High Court duly served notice of this application on all judgment-debtors, including the respondent Mukherjee, a fact recorded in Exhibit 13. On March 27, 1933 the Court issued an order, shown in Exhibit F. 5, granting the decree-holder’s prayers. At that moment the judgment-debtor could have contended that the Asansol Court had become functus officio after it transmitted a certificate under section 41 of the Civil Procedure Code, and therefore it no longer possessed authority to sell the property in execution. No such objection was raised. The order expressly stated that notice had been dispatched to both the Chatterjee parties and to Mukherjee, and an affidavit affirmed that the notice had indeed been properly served on them. The decree-holder’s request was thereby fulfilled, and pursuant to the High Court’s direction the Sripur property was sold to the decree-holder for a sum of Rs 20,000. Following this sale Mukherjee instituted Miscellaneous Case No. 53 of 1933, seeking to set aside the transaction. In his application, reproduced as Exhibit E, the judgment-debtor advanced a jurisdictional argument in paragraph 19, asserting: “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.” The Subordinate Judge, on January 29, 1934, issued an order nullifying the sale, but the order made no reference to the specific pleading contained in paragraph 19 of Mukherjee’s application.

Displeased with the Subordinate Judge’s decision, the decree-holder appealed, filing Appeals Nos. 254 and 255 of 1934. The High Court’s subsequent order, shown in Exhibit F. 2 and dated July 11, 1935, upheld the Subordinate Judge’s determination to set aside the sale. In the course of these proceedings the judgment-debtors advanced the contention that execution of the decree could not proceed without the decree-holder first applying for the decree to be made absolute. In response, the learned Judges appended a pronouncement to their order, stating that although they were confirming the Subordinate Judge’s setting aside of the sale, the judgment-debtors would not be permitted to raise any further objection concerning the character of the decree, which the Court considered executable under the terms of the parties’ compromise. Once again, the judgment-debtors made no objection that the execution Court lacked jurisdiction to execute the decree and to sell the property. The next opportunity to contest jurisdiction arose when the property was slated for resale. On April 2, 1936, Mukherjee commenced Miscellaneous Case No. 62 of 1936, documented as Exhibit 1, wherein he raised a variety of objections to the execution but did not assert that the execution Court was without authority to sell the property after the section 41 certificate had been sent to the High Court.

In this matter the property was sold for a second time and on 22 April 1936 the decree-holder purchased it. Mukherjee responded by filing appeal No 238 of 1936 and concurrently instituted Miscellaneous Case No 80 of 1936 in the execution court, seeking to set aside that sale. Neither the appeal to the High Court nor the application in the execution court raised any plea that the court lacked jurisdiction. The appeal was resolved by consent of the parties, and the court directed that Miscellaneous Case No 80 of 1936 be reheard by the execution court. Upon rehearing the sale was set aside.

Subsequently, on 4 April 1938 Mukherjee commenced Miscellaneous Case No 40 of 1938 under section 47 of the Civil Procedure Code, again challenging the sale. As in the earlier proceedings, no objection to jurisdiction was pleaded in the application. The application was dismissed and the appeal against that dismissal was also dismissed on 25 May 1938.

When the property was sold for a third time, Mukherjee filed Miscellaneous Case No 76 of 1938 on 27 June 1938, seeking to set aside that sale (Exhibit E.4). In paragraph 20 of his petition he asserted that the court had no jurisdiction to entertain the execution without a fresh certificate, stating that the earlier certificate creating jurisdiction had expired after the dismissal of the previous execution case and that the entire proceeding and subsequent sale were illegal, materially irregular and void for lack of jurisdiction. Despite this allegation, the plea was apparently not pressed at the hearing, and the miscellaneous case was dismissed on 30 June 1938.

Thereafter Mukherjee filed appeal F.M.A. No 262 of 1938 (Exhibit F) on 23 August 1938. That appeal was dismissed on 5 August 1940 on the ground that no material irregularity existed in publishing the sale and that the colliery had not been sold at an inadequate price because of any such irregularity. This further demonstrates that no issue of jurisdiction was raised before the High Court judges.

Finally, a review application (Exhibit B) was presented to the High Court on 25 November 1940. Paragraphs 11, 12 and 13 of that application are material. Paragraph 11 declares that after the judgment in F.A. No 246 of 1937 on 13 August 1940, the petitioner obtained the records of Suit No 1518 of 1923 from the Original Side of the Court in order to ascertain the amount due under the decree. The petitioner learned for the first time on 23 August 1940 that, following the dismissal of the earlier Execution Case No 296 of 1931 by the Subordinate Judge of Asansol on 27 February 1932, the result of that execution case had been transmitted to the Original Side under section 41 of the Civil Procedure Code and received on 11 March 1932. Moreover, no fresh certificate of non-satisfaction of the decree had been issued by the Original Side for a new execution, so there was no basis for initiating Execution Case No 224 of 1932 in the Subordinate Judge’s Court. Paragraphs 12 and 13 assert that the copies of the decree and certificate of non-satisfaction were taken by the decree-holder from the records of the old execution case and fraudulently used thereafter in Execution Case No 224 of 1932, and that the petitioner was misled by an order of the Subordinate Judge’s Court which directed that the certificate of non-satisfaction received be annexed to the record.

The Court observed that a fresh certificate of non-satisfaction of the decree had been issued by the Original Side of the Court for a new execution, and consequently there was no legal basis for initiating Execution Case No 224 of 1932 before the Subordinate Judge of Asansol. The petitioner thereafter contended that the decree-holder had removed copies of the decree and the certificate of non-satisfaction from the records of the earlier Execution Case No 296 of 1931, and had subsequently employed those documents fraudulently in Execution Case No 224 of 1932, thereby committing fraud upon the Court. Further, the petitioner asserted that he had been misled by an order of the Subordinate Judge, which read: “Register. Let the certificate of non-satisfaction received be annexed to the record.” The petition seeking review was dismissed on 8 May 1941, and the brief order of the learned Judges was 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 were held by the executing Court although that Court did not receive any certificate of non-satisfaction from the Court which passed the decree under execution. This objection does not properly come for investigation in a proceeding under Order XXI, rule 90, Civil Procedure Code. Even if the allegation of the petitioner about the discovery of new matter is correct, it cannot affect the decision of the appeal which we have dismissed.” The Court then noted that the narrative of the various stages of the execution proceedings demonstrated that, at the time the execution application was filed and a notice served upon the judgment-debtor, and also in the applications filed to set aside the two sales, the judgment-debtor never raised any objection on the ground that the execution Court lacked jurisdiction to enforce the decree. The Court held that the failure to raise such a fundamental objection barred the judgment-debtor from later invoking the jurisdictional plea under the principle of constructive res judicata after the property had been sold to an auction-purchaser who had taken possession. The Court identified two occasions on which the judgment-debtor first raised the jurisdictional question. In each instance the objection was not actively pursued, and therefore it was deemed to have been impliedly overruled. The first occasion arose when the property was sold for the second time and purchased by the decree-holder for Rs 20,000; in paragraph 19 of his application dated 7 July 1933 (Exhibit E) he challenged the Court’s jurisdiction, but the order dated 29 January 1934 made no reference to a sustained plea. The second occasion occurred when the property was sold for the third time and in his

In a later filing dated 27 June 1938, identified as Exhibit E.4, the judgment-debtor again raised the question of jurisdiction in paragraph 20 of his application seeking to set aside the sale. That objection application was dismissed, and there is no record indicating that the judgment-debtor subsequently pressed the objection. When he later appealed to the High Court, he did not invoke the jurisdictional plea as a ground of attack on the execution of the decree; consequently, the appellate court dismissed his appeal on other grounds. The judgment-debtor then filed a review application in which paragraphs 11, 12 and 13 articulated the objection to execution in more elaborate terms. The High Court rejected the review on the basis that the objection did not fall within the scope of Order XXI, rule 90 of the Code of Civil Procedure. That order consequently became final. The judgment-debtor admitted that the two earlier applications, Exhibits E and E.4, had been prepared according to his instructions. Because the orders arising from those applications became binding upon him, he could not escape their effect. The Court observed that the principle of constructive res judicata is fully applicable to execution proceedings and that this proposition is no longer subject to doubt.

The Court referred to the authorities in Annada Kumar Boy and Another v. Sheik Madan and Others (1934) 38 C.W.N. I41 and Mahadeo Prasad Bhagat v. Bhagwat Narain Singh (A.I.R. 1938 Patna 428). In the first case, a person applied for execution of a decree without raising any objection as to the maintainability of the decree; the Court held that no further objection on the issue of maintainability could be raised by the same applicant. In the second case, a money decree arising from a mortgage was executed, and the judgment-debtor challenged the jurisdiction of the execution court on the ground that no sanction under section 12-A of the Chota Nagpur Encumbered Estates Act had been obtained. The objection petition was dismissed, the property passed to the auction-purchaser, and in a subsequent declaration suit the point raised, though not decided in the earlier objection, was held to be res judicata by virtue of Explanation IV to section 11. The Court also cited the Privy Council decision in Ram Kirpal Shukul v. Mussamat Rup Kuari (1884) 11 I.A. 37, wherein it was held that a decision of an execution court that a decree entitled the plaintiff to future mesne profits was binding on the parties and could not be set aside later. The Privy Council emphasized that the binding force of such a decision rested on general principles of law rather than on any specific statutory provision. Earlier, the Subordinate Judge and the District Judge had ruled that the decree awarded mesne profits, a decision later reversed by the Calcutta High Court, whose Full Bench had held that the doctrine of res judicata did not apply to execution proceedings. The Privy Council overturned that position, with Sir Barnes Peacock observing that the parties were bound by the earlier decision, whether correct or not, because it had not been appealed and therefore became final and binding.

The Court considered earlier decisions addressing whether execution proceedings could be set aside. It observed that the binding effect of a decision in such matters rested on general principles of law rather than on the specific provision of section 13 of Act X of 1877, which corresponded to section 11 of the present Code. In the earlier case, both the Subordinate Judge and the District Judge had held that the decree granted mesne profits; however, that finding was reversed by the Calcutta High Court. The Full Bench of that High Court further held that the doctrine of res judicata did not apply to execution proceedings relating to the decree. That High Court decision was subsequently overturned on appeal before the Privy Council. At page 43 of the Privy Council judgment, Sir Barnes Peacock, delivering the Board’s opinion, remarked: “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 the case of Raja of Bamnad v. Velusami Tevar and Others(1), an assignee of a partially executed decree applied to the Subordinate Judge seeking to be entered on the record in place of the original decree-holder. The judgment-debtor contested the assignment, denied liability of certain properties to attachment, and alleged that the right to execute the decree was barred by limitation. The Subordinate Judge accepted the assignment, permitted the assignee to execute the decree and authorised the filing of a fresh application for attachment. No appeal was filed against that order. In the subsequent final proceedings, the Subordinate Judge again allowed the judgment-debtors to raise the plea of limitation. While delivering his judgment, Lord Moulton observed: “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.” In Sha Shivraj Gopalji v. Edappakth Ayissa Bi and Others(1), the decree-holder in the earlier execution proceedings could have raised a plea that the judgment-debtor had an interest …

In the earlier case, the decree holder attempted to attach certain property that fell within the scope of his decree, but he failed to raise the required plea at the appropriate stage. Because of this failure, the execution was dismissed. The Court held that such a dismissal functions as res judicata in any later execution proceedings. Apart from the specific provisions of section eleven of the Civil Procedure Code, it is contrary to established principle to permit a decree holder to resurrect the same claim in fresh proceedings merely because he neglected to rely on a particular argument at a proper earlier stage. The Court noted that abundant authority confirms that even a decision that is erroneous on a question of law operates as res judicata between the parties involved. Whether the earlier judgment was correct or not does not affect its operation as res judicata. The Court further observed that a prior decision in an execution proceeding, even if it erroneously concluded that the matter lay outside the competence of the executing court, remains binding on the parties, as illustrated in the authority reported in A.I.R. 1949 P.C. 302; 54 C.W.N. 54 and the case of Abhoy Kanta Gohain v. Gopinath Deb Goswami and Others.

The learned Chief Justice acknowledged that the doctrine of res judicata applies to execution proceedings, yet he declined to apply it to the present matter on the ground that the execution court lacked inherent jurisdiction to proceed with the execution. He supported this position by referring to the precedent set in Ledgard and Another v. Bull. The Court distinguished the present facts from that case. The Court then turned to a separate suit that had been instituted before a Subordinate Judge for infringement of exclusive rights granted by three Indian patents. Under the Patents Act, such a suit could be instituted only before a District Judge. The defendant initially objected to the jurisdiction of the Subordinate Judge and later joined the plaintiff in a petition to the District Judge to transfer the case to the Subordinate Court. The transfer was effected under section twenty-five of the Civil Procedure Code, even though it was admitted that a transfer could not be made unless the court from which the transfer was sought possessed jurisdiction to hear the suit. Throughout the proceedings the defendant maintained his plea of jurisdiction, yet it was argued that his later conduct amounted to a waiver of that objection. The Court held that, although a defendant may be precluded by his own conduct from raising an objection to an irregular institution of a suit, the parties cannot, by mutual consent, convert a proceeding that lacks the judge’s inherent jurisdiction over the subject matter into a proper judicial process. Consequently, the decision in that patent suit did not give rise to constructive res judicata and therefore did not affect the present case. The Court also referred to the authorities in Gurdeo Singh v. Chandrika Singh and Chandrikah Singh v. Rashbehary Singh, as well as the earlier rulings reported in A.I.R. 1943 Cal. 460 and the 1886 decision, noting that those cases were distinguishable because they did not involve any issue of constructive res judicata.

In the appeal, the Court referred to several authorities. It observed that the two reported decisions, 13 I.A. 134 (1909) I.L.R. 36 Cal. 193 and Rajlakshmi Dasee v. Katyayani Dasee, are distinguishable because neither of them raised any issue of constructive res judicata. The Court also cited two decisions of the Allahabad High Court, namely Lakhmichand and Others v. Madho Rao and Baghubir Saran and Another v. Hori Lal and Another, which had been relied upon by the lower court.

The first Allahabad case concerned the grant of an assignment of the land-revenue of a village in favour of a grantee. The grantee subsequently mortgaged the assignment and a suit was filed on the basis of that mortgage; the trial court issued a decree in favour of the mortgagee. Later the same party instituted another suit seeking a declaration that the earlier decree was void because the original suit could not have been entertained without a certificate from the Collector, as required by the Pensions Act that governs the trial of such suits. The court held that the earlier decree had been passed without jurisdiction, since the statute expressly prohibited the commencement of a suit without the Collector’s certificate. Consequently, the earlier decree could not operate as res judicata in the later suit, which was filed after the certificate had been obtained. The Court stressed that the statutory provision created an initial lack of jurisdiction, and therefore that decision was inapplicable to the facts of the present case.

The second Allahabad decision dealt with the question of territorial jurisdiction. In that case a decree was passed against a minor for enforcement of a mortgage, but the property concerned lay outside the territorial limits of the court that rendered the decree. When the decree was later transferred for execution to the court that had jurisdiction over the land, the party who objected argued that the decree was a nullity. The trial court rejected that objection and directed the objector to commence a regular suit. In the regular suit the court held that an independent action could be maintained to set aside the earlier decree, even though no objection to jurisdiction had been raised in the original proceedings. The judgment also held that the bar contained in section 11, Explanation IV, of the Code of Civil Procedure did not apply to those facts. The Court further observed that, although section 21 of the Code of Civil Procedure was not technically applicable, the principle underlying that section should nevertheless be applied to a regular suit. Accordingly, the objection to jurisdiction was deemed waived, there was no inherent lack of jurisdiction, and the suit was barred by the principle of res judicata. The Court considered that decision to be wrongly decided.

The issue that arises in the present matter is not whether the execution court at Asansol possessed jurisdiction to entertain the execution application after it had issued the certificate under section 41, but whether the judgment-debtor is precluded by the doctrine of constructive res judicata from challenging the jurisdiction of that court.

The Court examined whether the provisions of section 41 were applicable and, more importantly, whether the judgment-debtor was barred by the principle of constructive res judicata from challenging the question of jurisdiction. After review, the Court concluded that the High Court’s view on the operation of res judicata was erroneous. Accordingly, the Court allowed the appeal and set aside both the judgment and the decree previously issued by the High Court. In place of those orders, the Court restored the original order of the Subordinate Judge, which had dismissed the application filed by the judgment-debtor. The Court further ordered that the appellant be awarded his costs incurred in the present proceedings as well as those incurred in earlier stages of the litigation. The appeal was thereby allowed. The Court’s record identified the agent acting for the appellant as P. K. Chatterjee and the agent representing respondent No. 1 as B. B. Biswas.