LexMOHANLAL GOENKA versus BENOY KRISHNA MUKHERJEE AND OTHERS
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... 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
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