# M 0 HANLAL GO ENKA v. BENOY KRISHNA MUKHERJEE AND OTHERS

- **Citation:** [1953] 1 S.C.R. 377
- **Court:** Supreme Court of India
- **Decided:** 1950-02-10
- **Case number:** Civil Appeal No. 139 of 1951
- **Bench:** Mehr Chand Mahajan, DAs, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-0-hanlal-go-enka-v-benoy-krishna-mukherjee-and-others-21
- **Pages:** 27

## Headnote

377
•
Res judicata-Execution proceedings-Omission to raise objection to jurisdiction of executing Court-Constructive res judicataTrnnsfer 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 CoiirtMaintainability-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 certificate 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 proclaimed 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 execution 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 dismissal of the execution case in· February, 1932, and the transmission 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 execution 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 irregularity 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 execuand 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 precluded 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

## Text

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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 objection to jurisdiction of executing Court-Constructive res judicataTrnnsfer 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 CoiirtMaintainability-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 certificate 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 proclaimed 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 execution 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 dismissal of the execution case in· February, 1932, and the transmission 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 execution 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 irregularity 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 execuand 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 precluded 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 Kirpal Suknl v. Mussamat Rnp Kueri ([1884] ll I.A. 37), Raja of Rarnnad v. Vel1tswarni
Tevar ""d Others ([1921] 48 I.A.· 45) and Sha Shivraj Gopalji v.
Eda.ppakath Ayissa Bi and Others (A.I.R.1949 P.O. 302} referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 139 of 1951. Appeal from the Judgment and
Decree dated February 10, 1950, of the High Court
of Judicature at Calcutta (HarriesO.J. and Sarkar J.)
in Appeal from Original Order No. 95 of 1945, arising out of Judgment and Order dated January 30,
1945, of the Court of Subordinate Judge at Asansol
of Zilla Burdwan in Miscellaneous Case No. 70 of
1941.
N. O. Chatterjee (B. 0. Roy and A. K. Mukherjea,
with him) for the appellant.
Dr. N. 0. Sen Gupta (B. L. Pal, with him) for respondent No. l.
S.C.R. SUPREME COURT REPORTS
379
/
1952.
December 9. Das J. and Ghulam Hasan J.
delivered separate judgments.
The judgment of
Mahajan J. and Vivian Bose J. was delivered. by
MAHAJAN J.
1962
MohanZaZ
GoMka
v.
.
,
. .
lilanoy Eri1hna
MAHAJAN J.-In our oprmons the dec1s10n can be
Mukherjde
rested on either of the ground, which have been
and Others.
raised by our brothers Das and Ghulam Hasan
respecti¥ely.
We would therefore allow the appeal
on both the grounds.
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.
· ·
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 June 12, 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 February
27, 1932, dismissed for default and on March 11,
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
d.ocuments which had been previously transmitted by
the High Court. The decree-holder on November 24,
1932, filed in the Asansol Court another petition for
1962
380
SUPREME COURT REPORTS
[i953j
execution of the decree against the same judgmentdebtors with the same prayer for the realisation of the
Mo1~an.Zal
Goenka
de!;lretal amount by sale of the same properties as
v.
mentioned in the previous execution case. The appliB.noy Krishna cation was registered as Execution Case No. 224 of
Mukherj"
1932. 'l'he judgment-debtors' contention is that the
and Oth•rs.
certificate sent by the Asansol Court to the High
Das J.
Court on March 11, 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 January
30, 1945, in Miscellaneous Case No. 70 of 1941 but
found favour with the High Court in its judgment
delivered on February 10, 1950, which is now under
appeal before us.
It appears that on March 17, 1933, the decreeholder took out a Master's 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 discha.rged 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 June 25, 1923, and the
order datedFebruary7, 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 January 25, 1923, passed in the said suit and the
additional terms of settlement embodied in the order
of February 7, 1924, the payments made by the
judgment-debtors from time to time amounting to
S.C.R.
SUPREME COURT REPORTS
381
Rs. 30,437-8-0 besides a. sum of Rs. 3,500 which
1902
had been paid on account of settled costs and states
Mohanlal
that the balance of the decretal amount was still
Goenka
due and that there had been no other adjustment
v.
of the decree. It refers to a previous application by Benoy Krishna
tabular statement for execution of the decree by the
Mukherjee
appointment of a Receiver and by the sale of the
and Others.
Sripur colliery which was charged under the order of
Das J.
February 7, 1924, and to the order made by the High
Court on that tabular statement on June 21, 1926,
appointing the Official Receiver of the High Court
as Receiver of the Sripur colliery.
The affidavit
then recites that the Official Receiver who had been
given liberty to sell the colliery on certain terms
took steps to put up the same to sale but had been
prevented from actually doing so by reason of an
injunction obtained by one of the judgment-debtors
Benoy Krishna Mukherjee in Suib No. 843 of 1928
filed by him.
The affidavit further refers to the
fact that the said Suit No. 843 of 1928 had since
then been dismissed and that no appeal had been
preferred against that decree of dismissal and that
no order had been made for stay of execution of the
said decree.
Paragraph 13 of the affidavit then
st'!\Ws as follows:-
"that the plaintiff was advised that charge should
be enforced and Sripur colliery should be sold in
execution of the said order by th<il Asansol Court in
the local jurisdiction of which the colliery is situate
and the plaintiff accordingly by an order made on
the 15th of April, 1931, obtained leave of the Court
to execute the decree against Basantida.s Chatterjee,
Srimantodas Chatterjee and Bholanath Chatterjee
as sons, heirs and legal representatives of the deceased
Prankristo Chatterjee and the other defendants
judgment-debtors and caused the certified copies
of the decree dated 25th June, 1923, and the order
dated 7th February, 1924, to be transmitted to the
District Judge at Burdwan who in his turn sent the
decree to the Subordinate Judge of Asansol to
(;lxecute t}le d,ecre!3.
Such execution proceedings ar~
1952
Mohanlal
Goenk<J
382
SUPREME COURT REPORTS
(1953)
now pending before the Asansol Subordinate Judge's
Court being
Execution Proceedings No.
224
of 1932."
•
v.
In the circumstances the plaintiffs asked for
Benoy Kri•h•• directions on the lines mentioned in the summons .
•
~~k~:~;;:.
The summons w.as du'.y served on 3:11 the j~dgment
debtors as ment10ned m the affidavit of service filed
Das J.
in Court and referred to in the order made by the
'
Court on the Master's summons on.March 27, 1933.
The operative part of the said order of the High
»-
Court was as follows:-
"It is ordered that Official Receiver of this Court
who was appointed the Receiver in this suit of the
Sripur colliery pursuant to the said order dated the
21st day of June, 1926, be and he is hereby discharged
from further acting as such Receiver as aforesaid:
And it is further ordered that the said Receiver do
pass his final accounts before one of the Judges of
this Court and it is further ordered that the Subordinate Judge of Asansol be at liberty in execution of
the said decree and order dated the 7th day of February, 1924, to sell either by public auction or by private
treaty to the best purchaser or purchasers that can
be got for the same provided the said Subordinate
Judge shall consider that a sufficient sum has been
offered the Sripur colliery aforesaid charged under
the said order dated the 7th day of February, 1924:
And it is further ordered that the plaintiff be at liberty
[
to bid for and purchase the said colliery at the said
sale and if declared the purchaser to set off the amount
of the purchase money pro tanto against the balance
of his claim under the said decree:
And it is further
r
ordered that the plaintiff be also at liberty to add his
costs of and incidental to this application to be taxed
by the Taxing Officer of this Court to his claim under
the said decree."
The order sheet of Execution Case No. 224 of 1932
has not been printed in extenso but there can be no
doubt that this order of the High CourtwascommuniCl\t~q to th~ ;\sansol Court, for it was after this ord~r
•
S.C.R.
SUPREME COURT REPORTS
383
that the Asansol Court proceeded with the execution
195:1
case and Sripur colliery was sold for the first time on
Mohanlal
June 9, 11)33, and the decree-holder purchased t.he
Goenka
same for Rs. 20,000. This sale of course was evenv.
tually set aside, but this order made by the High Court Benoy Krish1ta
on the O:riginal Side being the Court which passed the
Mukherj.;e
decree in Suit No. 1518 of 1923 appears to me to inanaother.,
volve and imply, .and may well be regarded as in sub-
· Das J.
stance amounting to, an order for transmission of the
decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure. The Civil
Procedure Code does not prescribe any particular
form for an application for transmission or a decree
under section 39.
Under sub-section (2) of that section the Court can even suo motu send the decree for
execution to another Court. It is true that Order
XXI, rule 6, provides that the Court sending a decree
for execution shall send a copy of the ~ecree, a certificate setting forth that satisfaction of the decree had
not been obtained by execution within the jurisdiction
of the Court and a copy of the order for the execution
of the 'decree but there is authority to the effect that
an omission to send a copy of the decree or an omission to transmit to the Court executing the decree
the certificate referred to in clause (b) does not prevent the decree-holder from applying for execution
to the Court to which the decree has been transmitted.
Such omission does not amount to a material irregularity within the meaning of Order XXI, rule 90, and
as such cannot be made a ground for setting aside a.
sale in execution.
Further, the fact remains that the
certified copy of the decreQ and the certificate of nonsatisfaction which had been sent by the High Court
to the Asansol Court on April 15, 1931, through
tbe District Judge of Burd wan who forwarded the
same to the Subordinate Judge at Asansol were still
lying on the records of that Court and the sending of
another certified copy of the decree and a fresh certificate of non-satisfaction by the High Court would
have been nothing more than a formality.
In the
circumstances, the 01~ission to senq t4os~ qocumeqt;El
50
•
1952
384
SUPREME COURT REPORTS
[1953]
over again to the Asansol Court was a mere irregularity which did not affect the question of i·urisdiction
Jlohanlal
Goenka
of the executing Court. In my opinion, after the
v.
or11er made by the High Court on March 27, 1933,
Benoy Krishna had been communicated to the Asansol Court the
Mukherjee
Asansol Court became fully seized of jurisdiction as
and Others.
the executing Court and none of the proceedings had
thereafter in that Court can be questioned for lack
G7atla110
Hasan J.
of inherent jurisdiction.
•
I would, therefore, on this ground alone accept this
appeal and concur, in the order proposed by my learned_brother.
GHULAJ\1 HASAN J.-This case is illustrative of the
difficulties which a decree-holder has to encounter in
recovering the money in execution after he has
obtained the decree of court. It is one of those cases,
by no means rare, in which the execution proceedings
in the courts Mlow have dragged on to inordinate
lengths and led to consequent waste of public time
and expense to the parties.
The decree in the present case was passed upon a
compromise in Suit No. 1518 of 1923 on the original
side of the Calcutta High Court as long ago as June
25, 1923, in favour of one Nagarmull Rajghoria
against Pran Krishna Chatterjee and 5 others, hereinafter referred to as the Chatterjees.
The decree was
for a sum of Rs. 75,000 with interest at twelve per
cent. per annum with quarterly rests. The Chatterjees
hypothecated their Komdanga colliery as security for
the payment of the decretal amount.
Subsequent to
this decree the Ghatterjees entered into an agreement
with one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24, 1924, appointing the latter as Managing Agent of the aforeoaid
colliery whereby he became entitled to receive royalty
of another colliery called Sripur colliery.· The decree
was adjusted on March 18, 1'924, by making Mukherjee liable as surety and by the Chatterjees charging
their Sripur colliery as additional security. The
hypothecated properties were situate at Asa,nsol anil
S.C.R.
SUPREME COURT REPORTS
385
N agarmull obtained an order from the High Court
1902
for permission to execute the decree at Asansol with
.Mohanlal
the direction that a certified copy of the decree, a. copy
Goenka
of the order of transmission and a certificate of p!Lrv
tial satisfaction of the decree should be transferred to Benoy Krish..a
the court of the Subordinate Judge at Asansol. This
Mukherjee
order was passed on April 15, 1931, and the three
and Othe,.s.
documents aforementioned were sent to the transferee
Ghulam
court at Asansol through the District Judge, BurdHasan 1.
wan on June 12, 1931.
(Order XXI, rule 6, Civil
Procedure Code.)
On August 20, 1931, Nagarmull filed his first appli~
cation for execution of the <;lecree by sale of Sripur
. colliery.
'rhe execution case is numbered as 296 of
• 1931.
Notices under Order XXI, rule 22, rule 54 and
rule 66, of the Civil Procedure Code were issued and
served on various dates. The case was fixed for February 16, 1932.
On this date Nagarmull applied for
time to prove service of the notices and the case was
adjourned to February 23, 1932. He again applied for
time on that date and the case was adjourned to February 27, 1932.
On this latter date N agarmull was
again not ready and asked for more time.
But this
- was refused, and the execution case was dismissed for
default without any amount being realized under the
decree.
The transferee court sent to the High Court
what purported to be a certificate under section 41 of
the Civil Procedure Code, stating that the execution
case was dismissed for default on February 27, 1932.
Neither the copy of the decree, nor any covering
letter as required by the rules of t.he High Court was
sent along with the certificate.
The certificate was
received by the High Court on March 11, 1932.
It appears that the decree-holder filed a second
application for execution of the decree on November
24, 1932, by sale of the Sripur colliery.
This case
was numbered as Execution Case 224 of 1932.
Notices nuder Order XXI, rule 22 and rule 66, of the
Civil Procedure Code were duly served and the execu·
ting court ordered the issue of a- sale proclamation
fixing April 3, 1!)33, as the date of the sale.
It
386
SUPREME· COURT REPORTS
(1953J
appears that the decree-holder received only partial
satisfaction of the decree out of the sale proceeds of
Mohanlal
Goenka
Koradanga colliery which had been sold at the· in1962
v.
st:ince of the superior landlords and by certain cash
Benoy Krishna payments.
He applied for execution of the decree by
Afokh<rj" appointment of a Receiver and by sale of the Sripur
and Oth"'· colliery.
The Receiver was appointed on June 21,
Ghulam
1926, and he was directed to sell the Sripur colliery to
Hasan J.
the highest bidder permitting the decree-holder at the
same time to bid for and purchase the property, but
he was restrained from proceeding with the sale by an
order of court passed in a certain suit filed by Mukherjee against the decree-holder. This snit was dismissed
by the High Court. Accordingly the decree-holder
applied on March 17, 1933, to the High Court praying that the Receiver be discharged and leave be given
to the executing court to :sell the Sripur colliery in
execution of the decree of June 25, 1923, in which
Execution Proceedings No, 224 of-1932 were pending
at the time.
He also asked that leave be given
to him to bid for and to purchase the property.
Notices of· this application were duly served on
the parties and on . March 27, 1933, the High
Court granted all the prayers (Exhibit F. 5).
The property was sold on the 9th of June, 1933, and
was purchased by the decree-holder for Rs. 20,000.
Mukherjee, however, filed an application on July 7,
1933, under section 47 and Order XXI, rule 90, of
the Civil Procedure Code for setting aside the ·sale.
The application was numbered as Miscellaneous
Cas!J No. 53 of 1933.
The Chatterjees also started
two Miscellaneous· Oases Nos. 54 and.05 of 1933 on
July 8, 1933. During the pendency of the three
miscellaneous cases, the appellant Mohanla\ Goenka
purchased the decree on January 10, 1934. Miscellaneous Case No. 53 of 1933 was allowed and the
sale was set aside on January 29, 1934, and Oases
Nos. 54 and 55 of 1933 were dismissed for default.
The result of these miscellaneous cases was communicated to the High Court in a document which
purports to be a certificate under section 41 of the
j
1
l
s.c.:R.
SUPREME COURT REPORTS
387
Civil Procedure Code and was received on February 1,
1952
1934.
Two appeals were preferred by the decree·
Mohan!al
' holder on April 18, 1934, but the order setting asjde.
Goenka
the sale was confirmed and resale of the Sripur
v.
properties was ordered by the High Court. The pro- Benoy Krishna
perties were again sold on April 22, 1936, and were
Mukherjee
. purchased by the decree-holder for Rs. 12,000.
a,.d Othm.
Mukherjee filed an appeal in the High Court and
Ghulam
during the pendency of the appeal he filed an appliHasan J.
cation under section 47 and Order XXI, rule 90, of
the Civil Procedure Code for setting aside the sale.
The appeal was disposed of by consent of parties and
it was agreed that the application under Order XXI,
rule 90, be heard by the executing court. Accordingly the application was heard and·the sale set aside.
Mukherjee then applied under section 47 on April 4,
i938, stating that Mohanlal Goenka could not con-
~inue the proceedings started by Nagarmull, but the
· appli.cation was dismissed and May 22, 1938, was
fixed for the sale. of the property. He filed an appeal
in the High Court which was dismissed under Order
XLI, rule 11, of the Civil Procedure Code.
The property was sold for the third time and was purchased
by the decree-holder for Rs. 2,50,000 on May 27,
1938.
Mukherjee applied under section 47 and ..
Order XXI, rule 90, of the Civil Procedure Code for
setting aside this sale on June 27, 1938: (E-4)-
(Miscellaneous Case No. 76 of 1938}.
The application was dismissed on June 30, 1938, and the sale
was confirmed. Execution Case No. 224 of 1932 was
dismissed for part satisfaction.
The executing court
on July 9, 1938, sent to the High Court a certificate
under section 41 of the Civil Procedure Code, accompanied with the covering letter communicating the
result of the execution case.
This was received by
the High Court on July 12, 1938. Mukherjee carried
the matter in appeal to the High Court but the
appeal was dismissed on August 5, 1940: (Exhibit
F). Mukherjee filed an application for review under
Order XLVII, rule 1, of the Civil Procedure Code
against the aforesaid order on No'l·ember 25, Hl40,
388
SUPREME COURT REPORTS
(1953)
wn
(Exhibit B). He also filed on November 28, 1940,
Molwnlol
an application for leave to appeal to the Privy
Go•nka
Cooincil (Exhibit A).
The review application was
~
v,
dismissed on May 8, 1941, and leave was refused on
Be,.oyKrishno June 16, 1941.
On May 12, 1941, Mukherjee filed
Mukhorj..
an application under sections 47 and 151 of the Civil
and Others.
Procedure Code' (Miscellaneous Case No. 70 of 1941)
Ghulam
and it is this application which has given rise to the
Hasa" J.
present appeal before us.
'rhe application was supported by an affidavit filed on May 26, 1941.
The present appellant filed an objection on July 5,
1941, to the application.
The application was dismissed by the Subordinate Judge on January 30.
1945, but the order was set aside on appeal by th.e
High Court on.Feliruary 10, 1950. Leave to appeal
to this Court was granted by the High Court on
July 28, 1950 .
.. The case put forward by Mukherjee before the
Subordinate J'udge was that after the dismissal of
Execution Case No. 296 of 1931 ·on February 27,
1932, and the sending of a certificate under section
41 to the High Court, the decree was never again
transferred to the
Asansol
court for execution.
According to him, the decree-holder fraudulently
detached the certificate of non-satisfaction from the
Execution Case No. 296 of 1931 and attached it to
the second Execution Case No. 224 of 1932, inducing
the court to believe that the certificate had been
obtained from the High Court for taking fresh proceedings in execution.
Mu~herjee had instituted
Title Suit No. 3 of 1936 to recover some money and
to enforce a charge against the Sripur colliery and
for permission to redeem the charge declared in
favour of the decree-holder if it was prior to· his own
claim. 'rhe suit was dismissed but on appeal the
High Court allowed him to redeem the charge in
favour of the decree-holder. In order to ascertain
the amount of the charge Mukherjee instructed
his attorney to search the record of Suit No. 1518 of
of 1923 and he. came to know for the first time on
August 23, 1940, that after the dismissal or the first
S.C.R.
SUPREME COURT REPORTS
389
application a certificate under section 41 of the
w5 ~
Civil Procedure Code had been sent by the ~sansol
Mohanlal
Court to the High Court and the latter never reGoenka
transferred the decree for execution.
Accordingly
v.
his case was that the Asansol Court had no jurisdic- Benoy Kriihna
tion to entertain Execution Case No. 224 of 1932,
::~k~:;j~e
and all the proceedings in connection therewith were
n
•••s.
null and void.
He therefore urged that the auction
Ghularn
sale should be set aside. The present appellant denied
Hasan J.
the allegations of the judgment-debtor.
He pleaded
that no certificate under section 41 of the Civil
Procedure Code was sent to the High Court in
Execution · Case No. 296 of 1931 a.nd the execution
court retained jurisdiction throughout, that the
High Court had authorised the sale of the property
in execution of the decree and that no.fresh certificate of non-satisfaction was required to give jurisdiction to the AsansGl Court to proceed with Execution
Case No. 224 of 1932. The judgment-debtor was
a.ware that the copy of the decree an<i the certificate
of non-satisfaction were not sent to the High Court
and he could not possibly have laboured under a
wrong impression that a fresh certificate had been
sent by the High Court for taking execution proceedings and that the decree-holder practised no
fraud upon him.
He also pleaded that the application was barred by limitation, that it was barred by
the principle of res judicata as the objection now
raised had previously been made and either not
pressed, or rejected and that the judgment-d0btor was
. fully aware of all the proceedings that had taken
place in connection with the decree.
The Subordinate Judge framed the following three main issue1> in
the case:-
1.
Is this Miscellaneous Case maintainable
under section 151 of the Civil Procedure Code?
2.
Did this court act in accordance with section
41, Civil Procedure Code ? If so, was the decree
retransmitted to this court for fresh execution in
1932? If not, had this court jurisdiction to e:;ecu¥e
~he d,ecree 11~ain in 1932?
390
SUPREME COURT REPORTS
(1953]
19°2
3. Is this Miscellaneous Case 'barred according
Mohanlal
to the ,principle of res judicata?
Goenka
,Upon the first point the learned Subordinate Judge
v.
held that the executing court did not lose jurisdicB••0Y Kri~hna tion to execute the decree, that the allegation about
M;":;t•;J"
the detaching of certificate of non-satisfaction from
an
"'· the records in the custody of the court and its surGhulam
reptitious insertion in Execution Case No. 224 of
Ha•an J.
1932 ·constitute grounds for a suit, and a fresh application under section 151 of the Civil Procedure Code,
was not maintainable.
Upon the second point the
court held that having regard to the circumst·ances
of the. case, no certificate of non-satisfaction of the
decree as required by section 41 was sent by the
executing court to the High Court, that no re-transmission of the decree by the High Court was required
to start Execution Case No. 224 of 1932 and that
the ~xecuting court retained seisin of the execution
and could execute the same without a further direction from the· High Court. Upon the third point,
the learned Subordinate Judge held that Mukherjee
had alleged in para. 15 of bis petition in Miscellaneous
Case No. 53 of 1933 that the decree and the certificate were not sent by the High Court for starting the
execution case afresh, but this objection to jurisdiction was not pressed at the time of the hearing.
Again in para. 20 of his petition in Miscellaneous
Case No. 76 of 1938 he had urged the same point but
it was not pressed.
Mukherjee admitted in his evidence as P. W. 4 that all bis applications were drawn
up according to his instructions but despite this fac1l
he did not press the allegations made in the miscellaneous cases.· It was accordingly held on the
authority of Annada.Kumar Roy and Another v. Shtik
. Madan and Others(') and Mahadeo Prasad Bhagat
v. Bhagwat Narain Singh (') that the principle. of
constructive res judicata is applicable to execution
proceedings.
The view taken by the Court was that
having made the allegations in the miscellaneous
cases and thim .abandoned them, the judgment-debtor
\1)(1934) 38 C.W.N. 141.
_ (i) A.l.R. 1938 Patna 427.
•
,
l
S.C.R.
SUPREME COURT REPORTS
391
was precluded lrom raising the plea of jurisdiction of
1952
the court to. execute the decree. Mukherjee preferred
Mohanlal
an appeal to the High Court.
The matter cam~ up
Goenka
before Harries C. J. and Sarkar J.
The learned
v.
Chief Justice held that the Asausol Court not only Benoy Krishna
sent what purported to be a certifica.te under section
Mukkerjee
41 of the Civil Procedure Code to the High Court,
and Others.
~
but intended such certificate to be a certificate
Ghulam
of non-satisfaction.
He did not agree with the Sub-
· Hasan J.
-..
ordinate Judge that the document was not intended
to be a certificate and was merely an intimation that
the first attempt at execution had failed.
In the
view of the learned Chief Justice there was no need
for the Court at Asansol to send any intimation at
all.
The learned Chief Justice agreed that upon a
true construction of section 41, failure to execute the
decree at the first attempt for non-appearance of the
decree-holder was not the total failure to execute the
decree as contemplated in that section.
He, however,
held that the fact that the certificate was sent when
it should not have been sent cannot affect the question if, as he held, the certificate was intended to be
a certificate of non-satisfaction.
The learned Chief
Justice referred to a number of authorities in support
of his conclusion.
He accordingly held that the
Asansol Court had ceased to have jurisdiction to
execute the decree and was not entitled to entertain
the second application for execution.
Upon the
,;
question of res judioata the learned Chief Justice
-.
observed that "a judgment delivered by a Court not
ir
competent to deliver it cannot operate as res judioata
and the order of the Subordinate Judge of Asansol,
being wholly without jurisdiction, cannot be relied
upon to found a defence upon the principle of res
judioata." He went on to say: "It is true that the
appellant could and should have raised the question
in the second execution case that the Asansol Coufb
had no jurisdiction in the absence of a certificate of
non-1;11.tisfaction from the High Court to entertain the
application. But in my view though this point was
. neither made nor pressed, these orders of the learr~ed,
?~
392
·SUPREME COURT REPOR'fS
(1953)
1952
Subordinate Judge in the second execution applica.-
Mohanlal
tion cannot be urged as a bar to the present applica.-
Goenka
tion under the doctrine of res judioata. It is true
v.
tbitt section 11 of the Code of Ci vi! Procedure does
Ben'oy Krishna not apply to execution proceedings, but it has been
Mukherjee
held by their Lordships of the Privy Council th.at the
and Oth"s.
principles of the law relating to resjudioata do apply
Ghulam
to execution proceedings and Mr. Atul Gupta bas
Hasan J,.
urged that the present application is barred by res
judioata ............ "
He drew a distinction between
the case of an irregular assumption of jurisdiction and
want of inherent jurisdiction and holding that the
order of the Subordinate Judge at Asansol fell under
the latter category, he came to the conclusion that
the order is wholly null and void and cannot be
pleaded in bar of the application on the principle of
res judioata.
It has been contended before us on behalf of the
appellant (assignee decree-holder) that the execution
Court at Asansol. never lost jurisdiction over the
execution proceedings and that what purported to be
a certificate under section 41 of the Civil Procedure
Code was no more than a mere intimation to the
High Court that the execution case had been dismissed only for default, that it was no failure to
execute the decree within the meaning.of section 41
of the Civil Procedure Code, that in any case the
subsequent orders of the High Court passed from time
to time in the presence of the parties conferred jurisdiction upon the execution Court to proceed with the
execution and that in any event the question whether
the execution Court had or had not jurisdiction to
execute the decree was barred by the principle of
res judioata.
Having heard learned counsel for the
parties, we are of opinion that the appeal can be disposed of on the ground of res judioata without enteripg into other questions.
It cannot be disputed that the transferee Court was
invested with jurisdiction by the High Court when its
decree was transferred to it for execution.
The first
application for execution of the decree was dismissed
-
s.o.:R.
SUPREME COURT REPORTS
393
for default on February 27, 1932, and a document
purporting to be a certificate of non-satisfaction
under section 41 of the Civil Procedure Code was
sent by the execution Court to the High Court.
The
decree was admittedly not retransmitted for execution
by the High Court. Despite this fact the decreeholder made a .second application for execution on
November 24, 1932, (Execution Case No. 224 of
1932).
Notice was duly served upon the judgmentdebtor but he preferred no objection before the execution Court that it had no jurisdiction to execute 'the
decree.
This is the first occasion on which he could
have raised the plea of jurisdiction.
The second
occasion arose when the decree-holder filed
an
affidavit (Exhibit C) before the High Court on March
17, 1933, praying that certain directions should be
given to the execution Court for the sale of Sripur
properties and for an order discharging the Receiver.
Notice was duly served upon the judgment-debtors,
including Mukherjee (Exhibit 13) and the order
granting the prayers of the decree-holder was passed
on March 27, 1933 (Exhibit F. 5).
The judgmentdebtor could have pointed out that the Asansol Court
was functus officio after sending the certificate under
section 41 and had no further jurisdiction to sell the
property in execution but no such objection was
raised.
'l'his order clearly recites that notice was
sent to the Chatterjees as well f!.S to Mukherjee and
was proved by an affidavit to have been duly served
upon them.
The decree-holder's prayerwas granted
and in pursuance of the order of the High Court the
property was sold and was purchased by the decreeholder for Rs. 20,000, whereupon Mukherjee started
Miscellaneous Case ~o. 53 of 1933 for setting aside
the sale. In this application (Exhibit E) the judgment-debtor raised the question of jurisdiction in
paragraph 19 which runs thus:- .
·
"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."
'
·
19li2
Mohanlal
Goenka
v.
Be.noy Krishn1t
Mukherje•
and Others.
Ghularn
Hasan J.
394
SUPREME COURT REPOR'l'S
[1953j
1962
The order of the Subordinate Judge dated·January
29, 1934, by which he set 3,side the sale does not
ft.fohanlal
Goenha
meption that the plea raised in paragraph 19 of the
v.
application was pressed. The decree-holder who was
Be11ov Krishna aggrieved by this order preferred two appeals Nos.
Jiukherjee
254 and 255 of 1934.
The order of the High Court
and Others.
(Exhibit F. 2) dated July 11, 1935, shows that the
Ghulani
decision of the Subordinate Judge setting aside the
'i
Hasan J. . sale was confirmed. It appears that the judgmen'tdebtors had raised the question that the decree could
f'
not be executed without the decree-holder applying
for making the decree absolute. In view of this dispute the learned Judges added in the order that
although they- were conf\rming the order of the
Subordinate Judge setting aside the sale, the judgment-debtors will not be entitled to raise any objec- ·
tion as to the nature of the decree which in their
opinion was executable under the terms of the compromise arrived at by the parties concerned.
F,lere
again no objection was raised by the judgn,tent,debtors
that the execution Court had no jurisdiction to execute
the decree and sell the property.
The next occasion when the objection to jurisdiction should have been raised was when the property
was to be resold.
Mukherjee started Miscellaneous
Case No. 52 of 1936 on April 2, 1936, (Exhibit 1), in
which he raised all sorts of objections to the execution but nowhere stated that the execution •Court had
no jurisdiction to sell the property after the certificate
>-.
under section 41 of the Civil Procedure Code had
-:-
been sen.t to the High Court.
'.l'he property was sold
"I
for the second time and was putchased by the decreeholder on April 22, 1936.
Mukherjee preferred an
appeal No. 208 of 1936 and at the same time started
a Miscellaneous Case No. 80 of 1936 in the execution
Co mt to set aside the sale; No plea of jurisdiction
was raised either in tbe grounds of appeal to the
. High Court or in th"e application for setting aside the
execution sale.
The appeal was disposed of by consent of parties with the direction that Miscellaneous
Case No. 80 of 1936 should be reheard by the
--
S.C.R. · SUPREME COURT REPORTS
39£)
1952
execution Court. The sale was set aside on rehearing.
Mukherjee then started Miscellaneous Case No.