1. This is a second appeal from the judgment and decree passed by the learned District Judge of Azamgarh setting aside the judgment and decree passed by the learned Subordinate Judge of that district in a suit brought by the plaintiff-appellant for a declaration that simple money decree dated 28th May 1919 passed by the District Judge of Gorakhpur in insolvency proceedings in favour of the Official Receiver and against the appellant was without jurisdiction and therefore a nullity and that the property of the plaintiff attached in execution of that decree was not liable to attachment and sale.
2. It appears that the plaintiff appellant obtained assignment of two decrees from Ramanand and Naurangi who were subsequently declared insolvent by the District Judge of Gorakhpur. The plaintiff-appellant gave a discharge as regards those decrees either by receiving payments or otherwise relinquishing claim in respect of the judgment-debt. It is common ground that those decrees did not subsist on the date on which the District Judge passed the decree in question before us. The learned District Judge of Gorakhpur acting as Judge of the insolvency Court held the plaintiff appellant to be liable to the estate of the insolvents Ramanand and Naurangi in respect of the amounts recoverable under the decrees assigned to the plaintiff-appellant and passed a simple money decree against him for a sum of Rs. 2,831-5-3 in favour of the receiver Raghubir Pershad, who assigned the decree to Salik Rarn Sahu, the respondent before this Court. The latter obtained a transfer of that decree to a Court in the district of Azamgarh where, the property belonging to the plaintiff appellant is situate which was subsequently attached. The plaintiff appellant thereupon instituted the suit out of which the present appeal has arisen for the declaratory reliefs already detailed. His main attack on the right of defendant 2 to execute the decree dated 28th May 1919 is that the District Judge of Gorakhpur sitting as a Judge of the insolvency Court had no jurisdiction to pass a decree of the character which he did and therefore it was a nullity and incapable of execution. The Court of first instance upheld this plea and decreed the suit. On appeal by Salik Ram Sahu, the assignee from the receiver, the lower appellate Court agreed with the Court of first instance as regards the decree passed by the insolvency Court being void having been passed by a Court having no jurisdiction to pass it, but dismissed the suit on the ground that a certain order passed in execution proceedings operated as res judicata so as to preclude the plaintiff-appellant from raising any question with regard to the validity of the decree. Accordingly, he dismissed the suit. The present second appeal has been preferred by the plaintiff-appellant impugning the correctness of the view taken by the lower appellate Court.
3. Little need be said on the question as to whether the insolvency Court can pass a simple money decree against a third person as the question is concluded by a recent decision of a Bench of this Court in Letters Patent Appeal No. 104 of 1927, Salik Ram v. Lachmi Prasad : AIR1930All622 which, it should be noted, arose out of a suit referring to the same decree as we are concerned with. In fact, the view taken by the Courts below which is supported by the ruling referred to has not been contested by the learned advocate for the respondents.
4. As regards the question of res judicata which the lower appellate Court has decided adversely to the plaintiff-appellant, the facts are these: When defendant 1 transferred the decree passed in his favour by the insolvency Court to the respondent Salik Ram Sahu, the letter applied for execution and a notice under Order 21, Rule 16, Civil P.C., was issued to the judgment-debtor, the plaintiff appellant-He did not then contest the right of the respondent to execute the decree on the ground that it was a nullity, having been passed without jurisdiction. Relying on a judgment of this Court dated 18th February 1925 (paper No. 37-C) the lower appellate Court has held that the validity of the decree not having been questioned at the stage when notice under Order 21, Rule 16 Civil P. 0.,'was issued to the plaintiff-appellant, the decision implied in the order of the Court directing process of execution to issue, namely, that the decree was capable of execution, operates as res judicata on the same issue arising between the same parties in the regular suit. It should be pointed out that the property which was in question in execution proceedings in which notice under Order 21, Rule 16, Civil P.C., was passed has not been shown to be identical with the property to which the present suit refers.
5. We are of opinion that the.view taken by the lower appellate Court on the question of res judicata cannot be sustained. It may be, and we do not feel called upon to decide that question, that a subsequent application for execution cannot be objected to if the judgment-debtor did not take objection to a process of execution previously issued, of which notice had been given to him under Order 21, Rule 16, Civil P.C. The question before us is different, namely, whether the omission on the part of the judgment-debtor to take objection on receipt of notice under Order 21, Rule 16, Civil P. C, precludes him from agitating the question in a regular suit subsequently brought. The doctrine of res judicata as embodied in Section 11, Civil P.C., does not, in terms, apply to orders passed in execution proceedings, though the principle of res judicata is applied to preclude one of the parties to the execution proceedings from raising a question which had been previously raised and decided between the parties or should be taken to have bean raised and decided between the parties. But a question arising in a regular suit between the parties, otherwise maintainable, cannot be held to be barred by the rule of res judicata only because such question could have been possibly raised at some stage of the execution proceedings between the parties. The question in issue in the present suit was not directly and substantially in issue in any 'former suit' nor was it 'heard and finally decided,' as required by Section 11, Civil P. C, which must be our guide in this. Expln. 4 of that section is likewise limited to a matter which might and ought to have been made a ground of defence or attack in such 'former suit.' There was no former suit in which the question could have been raised. Under these circumstances the plea of res judicata must fail.
6. It has been argued by the learned advocate for the respondents that the suit is barred by the provisions of Section 47, Civil P.C. Indeed, in his argument bearing on the question of res judicata, Section 47, Civil P. C, has been so referred to as to indicate that he regards the two questions as inseparably connected. It is clear to us that Section 47, Civil P.C., has no application to the circumstances of the case before us. The question which arises between the parties to the suit does not relate 'to the execution, discharge or satisfaction of the decree' 'but is one which, if decided in favour of the plaintiff-appellant, strikes at the very root of the decree which the respondent is seeking to execute. Section 47 is limited to cases where the satisfaction of the decree as distinguished from the validity of the decree itself is in question. There can be no doubt that if the suit had been instituted immediately after the decree was passed by the insolvency Court of Gorakhpur, no plea founded on Section 47, Civil P.C., could be upheld. The fact that the suit was instituted after execution proceedings had been taken to a certain stage will not make Section 47, Civil P. C, applicable, if it was not so applicable before. The test, in our opinion, is whether the relief claimed by the plaintiff-appellant aims at something which refers to discharge or satisfaction of the decree, assuming it is a good decree or whether the relief claimed is one which, if granted, will nullify the decree altogether. For these reasons we are of opinion that the ground on which the plaintiff-appellant's suit has been dismissed by the lower appellate Court cannot be upheld.
7. Accordingly we allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The 'plaintiff-appellant will have his costs from the contesting respondent Salik Rarn Sahu.