The principle of constructive res judicata applies to execution proceedings, and an erroneous decision on a question of law or jurisdiction operates as res judicata between the parties.

ORDER – This Second Appeal is by the judgment-debtors whose objection under section 47 of the Code of Civil Procedure has been negatived by both the lower Courts.

2. In execution of a money decree obtained by respondent No. 1 against the appellants certain fields held by the appellants in ‘Bhumiswami rights were attached and sold. Respondent No. 2 is the auction-purchaser thereof. At the time of attachment or sale of the property or even up to the confirmation of the sale, no objection was raised by the appellants that the land was not liable to be attached or sold by reason of the provisions contained in section 165 (7) (a) of the Madhya Pradesh Land Revenue Code, 1959. It appears that when the land was attached, the Code had come into force, but at the time of sale or its confirmation, that objection was available to the appellants. After the sale was confirmed the auction-purchaser moved the Executing Court on 21-12-1965 for delivery of possession. That application was resisted on various grounds by the appellants, but not on the ground that the sale was prohibited under the above said section. The objections preferred by the appellant were rejected by the Executing Court. Thereupon the appellants for the first time filed an application purporting to be under section 47, Civil Procedure Code, in which objection based on section 165 (7) (a) of the Madhya Pradesh Land Revenue Code was raised. The Executing Court dismissed the application summarily, while the lower appellate Court found that the application was barred by limitation and also by the principle of constructive res judicata.

3. Shri Shukla, learned counsel for the appellants, on the authority of the decision of the Supreme Court in Merla Ramanna v. Nallaparain and others1 urged before me that the lower appellate Court was in error in holding that the application was barred by limitation. Their Lordships of the Supreme Court held in that case that interference with possession or dispossession itself and not sale of the property that gives a party right to file an application and time begins to run from that point of time and that where the sale is void, the appropriate Article applicable is Article 181 of the Indian Limitation Act (since repealed), which is as under:

‘Any other /appplication for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues’

In this view of the matter it will have to be held that when proceedings under Order 21, rule 95, Civil Procedure Code were instituted that the time started running against the appellants and not when the Madhya Pradesh Land Revenue Code came into operation. The application appears to be within limitation. Even if this point is decided in favour of the appellants, the bar of constructive res judicata still remains to be considered.

4. On this aspect of the matter on the basis of the decision of the Supreme Court in Ahmad Hafiz Khan v. Mohmmad Hasan Khan2, Shri Shukla submits that the sale is without jurisdiction, and that it is not required to be set aside. By the application in question what the appellants did was to point out to the Court that the sale effected by it was void and without jurisdiction and that the Court should retrace its steps. As no application or suit is required to set aside the sale, which is void, no objection need not be filed and the failure to raise such an objection need not result in bringing into operation the principles of constructive res judicata. Section 165 (7) (a) of the Madhya Pradesh Land Revenue Code, 1959 reads as under: –

“(7). Notwithstanding anything contained in sub-section (1) or in any other law for the time being in force – (a) only that part of a holding of a Bhumiswami shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land;”

5. It is plain from the reading of the section that attachment or sale of the land in excess of t