The principle of constructive res judicata applies to execution proceedings, and a party cannot raise a contention which it could have raised and failed to do.

ORDER : - There was a compromise decree between the opponent, the landlord, and the petitioner, the tenant, on 16-9-1950. By this compromise decree the petitioner agreed to vacate the premises in suit on or before 31-1-1952. As she failed to do so, the opponent applied for execution on 1-2-1952, and the executing Court ordered possession. The petitioner contended that the compromise decree had created a fresh tenancy and that tenancy was protected by the Rent Act. That contention was rejected by the executing Court.

Against that decision the petitioner appealed to the District Court. The District Court dismissed the appeal. She came to this Court in revision and the revision application was also dismissed, and the High Court directed the executing Court to give effect to the warrant of possession which it had already issued. As the warrant of possession had expired, a fresh warrant of possession was issued by the executing Court and at that stage the petitioner contended that the decree was a nullity as the Court that passed the decree had no jurisdiction.

The trial Court rejected the contention of the petitioner. The petitioner appealed to the District Court. That appeal was dismissed and she has now come in revision.

2. The first question that has got to be decided in limine is whether the petitioner is entitled to raise this contention at this stage. Now, it is clear that it was open to the petitioner to raise the contention that the decree was a nullity when she put forward the contention that the decree had created a new tenancy. She was challenging the execution proceedings taken out by the opponent and the clear challenge to this execution proceedings would have been want of jurisdiction in the Court which passed the decree.

The petitioner did not choose to challenge the darkhast on that ground. She appealed from the decision of the executing Court to the District Court and there also she did not put forward this contention. She came to the High Court and in the revision application also her challenge to the execution proceedings was limited to one ground, viz. that the compromise decree had created a tenancy which was protected by the Rent Act.

Now, it is well settled that S.11, Civil P.C. is not exhaustive and the principle of res judicata applies to proceedings other than suits referred to in S.11. It is equally well settled that the principle of res judicata applies to execution proceedings. The principle underlying res judicata is that there must be a finality to litigation and the finality is arrived at not only by Court actually deciding the issue but also by the law taking the view that the Court has constructively decided the issue. The law does not only not permit a party to raise a contention which has already been decided, but it also prevents a party from raising a contention which he could have raised and has failed to raise.

It is not disputed that if the principle of constructive res judicata were to apply, the petitioner would not be able to challenge the execution proceedings on a ground which she could have put forward earlier and which she failed to do. What is urged by Mr. Desai is that the principle of constructive res judicata does not apply when the question of jurisdiction has been raised. I fail to understand on what principle an exception can be made to the principle of constructive res judicata when we are dealing with an issue of jurisdiction. Mr. Desai says that if the Court that passed the decree was without jurisdiction, the decree is a nullity and the executing Court cannot execute that decree, and if there is inherent want of jurisdiction in the executing Court, that contention can be raised at any stage.

Now, it cannot be disputed that if the High Court had held that the Court had jurisdiction, there would have been a finality as far as that decision went and it would not have been open to the petitioner again to raise that contention. It is difficult to understand why a similar fina