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SUPREME COURT OF INDIA
Ghulam Hasan : M.C.Mahajan : S.R.Dass : Vivian Bose
Mohanlal Goenka
Versus
Benoy Kishna Mukherjee
Case No. : 139 of 1951
Date of Decision : 12/9/52
Advocates Appeared: Biswas R.R. : Chatterjee N.C. : Chatterjee P.K. : Mukherjee A.K. : Pal B.L. : Roy B.C. : Roy C. : Sen N.C.
Held: (allowing the appeal)2 (per Ghulam Hasan J.): (1) That the principle of constructive les judicata is applicable to execution proceedings is no longer open to doubt. 3 So, where neither at the time when the execution application was made and a notice served upon the judgment-debtor, nor in the applications for setting aside the two sales made by him did the judgment-debtor raise any objection to execution being proceeded with on the ground that the execution court had no jurisdiction to execute the decreed, the failure to raise such an objection which went to the root of the matter precluded him from raising the plea of jurisdiction on the principle of constructive res judicata after the property had been should to the auction-purchaser who had entered into possession.
(2) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the
J. A.LR. 1944 Lah. : 282 (P.B.) approved.
2. Prom A. LR. 1950 Cal. 287 : Das J allowed the appeal on another ground.
3. , Annada Kumar v. Sheik Madan, 38 C.W .N. HI and Mahadeo Prasad v. Bhagwat Narain Singh, A.I.R. 1938 Pat. 427 approved.
parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties.
Certainly. Based on the provided legal document, here are the key points summarized:
The principle of constructive res judicata applies to execution proceedings, meaning that issues not raised at the appropriate time cannot be reopened later to challenge jurisdiction or other fundamental aspects of the execution process (!) (!) .
If a judgment-debtor fails to object to jurisdiction or other objections that go to the root of the matter during execution proceedings, such objections are generally barred by res judicata, even if they are based on erroneous decisions or irregularities, provided the court had jurisdiction at the time (!) (!) .
The sending of a certificate of non-satisfaction under section 41 of the Civil Procedure Code by the executing court to the High Court is a crucial step in the transmission of the decree for execution. Failure to retransmit the decree after such a certificate does not necessarily deprive the court of jurisdiction to proceed with execution, especially if the court retains seisin of the case (!) .
Jurisdiction to execute a decree is deemed to be retained if the court continues to act on the case, even if a formal certificate of non-satisfaction was not sent or was improperly handled, unless it is established that the court was without inherent jurisdiction from the outset (!) (!) .
Objections regarding jurisdiction, if not raised at the proper stage or if abandoned, cannot be revived later on the principle of res judicata, particularly when the party had the opportunity to raise such objections but chose not to (!) (!) .
Errors or irregularities in the execution process, even if erroneous, do not necessarily nullify the proceedings if the court had jurisdiction and the irregularity did not amount to a want of inherent jurisdiction (!) (!) .
The doctrine of res judicata extends to execution proceedings, and even decisions on questions of law or jurisdiction, if not challenged at the appropriate time, become binding and prevent the re-raising of the same objections in subsequent proceedings (!) (!) .
The principle that a court lacking inherent jurisdiction cannot validly decide a matter applies, and such decisions are null and cannot operate as res judicata (!) .
The overall legal principle emphasizes the importance of raising jurisdictional and other fundamental objections promptly during proceedings, as failure to do so results in those objections being barred from later consideration (!) (!) .
Please let me know if you need a more detailed analysis or specific guidance based on this case.
M.C.MAHAJAN, J.
(1) IN our opinions the decision can be rested on either of the ground, which have been raised by our brothers Das and Ghulam Hasan respectively. We would therefore allow the appeal on both the grounds.
(2) 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.
(3) THE relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J. and I need not set them out in detail here. Suffice it to say that on 12/06/1931, the High court, Original Side, which is the court which had passed the decree, transmitted the same for execution to the Asansol court through -the District Judge of Burdwan and that the Asansol court thereupon acquired jurisdiction to execute the decree against properties situate within its territorial limits. The application for execution made by the decree-holder which was numbered 296 of 1931 was, however, on 27/02/1932,dismissed for default and on 11/03/1932, the Asansol court sent to the High court what in form purported to be a certificate under section 41 of the Code. There is no dispute, however, that the Asansol court did not return to the High court the certified copy of the decree and other documents which had been previously transmitted by the High court The decree-holder on 24/11/1932 filed in the Asansol court another petition for execution of the decree against the same judgment debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case. The application was registered as Execution Case No. 224 of 1932. The judgment-debtors contention is that the certificate sent by the Asansol court to the High court on 11/03/1932, was and was intended to be in form as well as in substance a certificate under section 41 of the Code, and that thereafter the Asansol court ceased to have jurisdiction as the executing court and that as there was no fresh transmission of the decree by the High court the Asansol court could not entertain Execution Case No. 224 of 1932 and consequently all subsequent proceedings in the Asansol court were void and inoperative for lack of inherent jurisdiction in that court. This contention was rejected by the Subordinate Judge of, the Asansol court in his judgment delivered on 30/01/1945, in Miscellaneous Case No. 70 of 1941 but found favour with the High court in its judgment delivered on 10/02/1950, which is now under appeal before us.
(4) IT appears that on. 17/03/1933, the decree-holder took out a Masters 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 discharged from further acting as Receiver in execution, that leave be given to the Asansol court to sell the colliery in execution of the decree dated 25/06/1923, and the order dated 7/02/1924, 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 25/01/1923, passed in the said suit and the additional terms of settlement embodied in the order of 7/02/1924, the payments made by the judgment-debtors from time to time amounting to Rs. 30,437.80 besides a sum of Rs. 3,500.00 which bad been paid on account of settled costs and states that, the balance of the decretal amount was still due and that there had been no other adjustment of the decree. It refers to a previous application by tabular statement for e
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