1. This is an execution of decree appeal by Syed Tahir Hasan, who objected in the Court below to the execution of a decree obtained by the respondent, L. Chander Sen, on foot of a mortgage deed executed by the appellant's patients and the appellant himself, on 21st March 1921, in respect of proprietary right in the right to hold revenue free shares in a number of villages described in the mortgage deed.
2. The objector-appellant was a party to the suit in which the decree for sale of the mortgaged property was passed. The father of the appellant had died before the institution of that suit, which was brought against the other two executants, including the appellant, and certain subsequent transferees. The appellant did not, enter appearance, and the proceedings were ex parte against him. His mother however contested the suit. She pleaded that the property to which the mortgage related was not transferable under the Pensions Act 23 of 1871, nor had the Court any jurisdiction, without the Collector's certificate, to entertain the suit. Subsequently the plaintiff obtained the requisite certificate from the Collector and filed it. The written statement was amended, and it was pleaded that as the plaintiff (the mortgagee) was a stranger to the group of grantees, he could not maintain the suit in spite of the Collector's certificate. The Court struck a number of issues, Nos. 2 and 3 of which ran as follows:
(2) Whether the property in suit is not transferable under Sections 4, 6, and 12 Pensions Act of 1871? (3) Whether the suit is cognizable by this Court without the Collector's certificate
3. The Court decided both the issues in favour of the plaintiff and decreed the suit. A final decree was passed in due course, and the decree-holder applied for its execution. The present appellant then objected to the sale of the property, inter alia, on the ground that under Section 11, Pensions Act, the Court had no jurisdiction to sell the property which was of the nature described in the aforesaid section. The objection was disallowed in a very summary order which betrays want of appreciation on the part of the lower Court as regards the nature of the objection and the questions thereby raised. The case was argued, at considerable length before us as if the entire controversy was of first impression. The Pensions Act (Act, 23 of 1871) is described as 'An Act, to consolidate and amend the law relating to pensions and grants by Government of money or land revenue.'
4. Section 4 debars a civil Court from entertaining any suit relating to 'pensions or grant of money or land revenue conferred or made by the British Government or any former Government.'
5. Section 6 however empowers such Court to entertain such suits if the Collector grants a certificate that the case may be tried. As already stated, the mortgagee had obtained the certificate of the Collector, and assuming the suit for enforcement of the mortgage was a suit relating to any pension, etc., as alleged by the contesting defendant, the jurisdiction of the Court to entertain and try it was saved by the Collector's certificate. No question can now arise in respect, of the Court's jurisdiction so far as it was effected by Section 4, Pensions Act. The contesting defendant had also pleaded that the property covered by the mortgage deed was not transferable in view of the provisions of Section 12, which cannot be understood without reference to Section 11. Both the sections may therefore be conveniently quoted in full. They ran as follows:
(11) No pension granted or continued on political considerations, or on account of past. services or present infirmities or as a compassionate allowance and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court in British India, at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such Court, (12) All. assignments, agreements, orders, sales and securities o every kind made by the person entitled to any pension, pay or allowance mentioned in Section 11, in respect of any money not payable at or before the making therefor on account of any such pension, pay or allowance, or for giving or assigning any future interest there under, are null and void.
6. As was pointed out by a Bench of this Court in Lakhmi Chand v. Madho Rao 1930 All. 681, Section 4 is of wider scope than Section 11 inasmuch as the latter refers to pensions, while the former refers not only to pensions but also to grants of money or land revenue. One of the contentions put forward on behalf of the respondent is that the decision in the suit itself is a bar to the appellant's objection being heard so far as it involves the question whether the property covered by the mortgage deed is a pension within the meaning of Section 11. It should be observed, that Section 11 had not been pleaded in the suit, nor could it be pleaded at that stage. That section forbids sale of a pension in satisfaction of a decree or order of any Court. That stage arrived after the decree was passed. The question which could arise in the suit itself and was raised had reference to the powers of the mortgagor to make the mortgage as to which provision is made in Section 12, which declares:
all assignments, agreements, sales and securities of every kind made by the person entitled to any pension...null and void.
7. It is contended on behalf of the respondent that the operation) of Section 12 depends entirely upon a consideration which is also a prerequisite of 'the application of Section 11, namely, that the property which the Court is called upon to sell is 'pension' within the meaning of Section 11. Unless the property in question is a pension, neither Section 11 nor Section 12, can have any application. It may therefore be contended for the respondent that, as the plea of the contesting defendant based on Section 12 was rejected in the suit itself, it cannot be considered in execution proceedings, though the objector invokes the aid of Section 11, and not of Section 12. For a proper consideration of this part of the case, it is necessary to quote the finding of the Court on issue No. 2, which bore on the point. It is as follows:
There is no evidence to show that the revenue of any of the villages in question was assigned by any of the former rulers to any of the predecessors of the defendant. It appears that these villages were released by the Government as revenue free holdings between 1840 and 1842. There is nothing to show that these 'muafi' rights amount to a pension within the meaning of the Pensions Act. The villages in question were, it is stated by the defendant in her written statement, received by transfer from Muhammad Naqi. I find that they are not untransferable and decide the issue in the negative.
8. The line of argument adopted in this Court on behalf of the objector appellant is that the Court had no jurisdiction to pass the decree for sale of the property which the law declares to be non-transferable, that it is always open to a party to establish by evidence that a certain decree is null and void for want of jurisdiction in the Court passing it, that Section 11, Civil P.C. does not in terms apply and that the general principles of the rule of res judicata did not preclude the appellant from raising a question which, was not actually decided between the decree-holder and; himself, and that in any view the Court should refrain from doing what the-law forbids.
9. I do not think that in the circumstances of this case it can be held that the decree sought to be executed was passed by a Court which had no jurisdiction to pass it. The suit, in which the decree was passed, was. brought on foot of a mortgage under Order 34, Rule 4, Civil P.C. Such a suit is cognizable by a civil Court; and it cannot be denied that the Court could pass a decree on foot of a mortgage-which was not proved before it to be invalid. The real question in controversy in the suit was whether the mortgage sought to be enforced was valid. One of the defendants to that, suit (not the present appellant) had impugned the mortgage as invalid on the ground that it related to property which was declared to be non-transferable by Section 12, Pensions Act, (No. 23 of 1871). The validity of the mortgage depended on proof of the fact whether the property was of the description given in the aforesaid section. The Court having held on evidence that the property had not been proved to be of that description, the validity of the mortgage was affirmed and a decree could be passed. There is-nothing in these circumstances which, affects the jurisdiction of the Court passing the decree. It cannot be said, that a Court which passes a decree on foot of a mortgage, which relates to non-transferable property and is therefore invalid had no jurisdiction to pass it. Arriving at an erroneous decision on a question of fact or law and acting without jurisdiction are two different matters. If the Court held erroneously that the property covered by the mortgage was not non-transferable, the utmost that can he said is that it acted on a wrong assumption in passing a decree. I am. therefore of opinion that the decree in question in this case cannot be treated as a nullity for want of Jurisdiction in the Court passing it.
10. In view of what I have held above, it is not necessary for me to decide-the general question whether it is open to a party to establish by evidence that the decree, sought to be executed, is null and void for want of jurisdiction in the Court passing it. The question has been recently considered at considerable length by a Full Bench of this Court in Cantonment Board v. Kishan Lal 1934 All. 609. The learned Chief Justice, who delivered the leading' judgment in the case, has expressed a very cautious opinion and confined himself strictly to the facts of the case before him. Mukerji, J., is inclined to subscribe to the general rule that the Court executing the decree cannot, in any case, go behind the decree. The third learned Judge, who was a member of the Full Bench, agreed with the conclusion arrived at by his colleagues and did not express any opinion on that general question. In my opinion that case is no authority for the broad proposition that in no circumstances can a Court executing the decree go behind it.
11. To my mind the question which we are called upon to decide is not whether the Court passing the decree had jurisdiction to pass it; but whether the Court executing the decree can sell the property. It may be contended that, in so far as the decree of a competent Court directs the sale of a certain property therein specified, the Court executing the decree must sell it and not listen to objections to its own power in that behalf. This contention cannot be allowed to prevail in view of the pronouncement of a Full Bench of this Court in Katwari v. Sita Ram tewari 1921 All. 118. In that case a decree for sale was passed on foot of a mortgage, and an objection was taken in the Court executing the decree that the property to which the mortgage related was an occupancy tenure which the Court was prohibited by law from selling. The Full Bench held that the Court executing the decree was not competent to sell the occupancy tenure. The learned Judges observed as follows:
No doubt it was not open to the judgment-debtor to contest the validity of the decree which was passed against him; but it was open to him to say to the Court that as the law contains a mandatory provision which precludes a Court executing the decree from selling an occupancy holding, the Court was bound to carry out the provisions of the law and not to act in violation of those provisions.
12. It seems to me that the position is precisely the same in the present case, except, in one respect which I shall presently discuss. It may not be open to the appellant to attack the validity of the decree. Indeed, I have held that the decree is a perfectly valid document so far as it goes, but it is certainly open to him to satisfy the Court executing the decree that, though it is called upon by the decree to sell the property, the law forbids it, and that if the sale takes-place at the instance of the Court, it will be in violation of an express provision of law, namely, Section 11, Pensions Act (No. 23 of 1871), which declares that a certain kind of property shall not be sold 'in satisfaction' of a decree or order of any such Court. The section is wide enough to include; cases where the property is to be sold in execution of a mortgage decree and; cannot be limited to cases of simple, money decrees. It draws no distinction between a case where the property is directed to be sold by a decree or is directed to be sold in pursuance of an attachment made by the order of a Court. As was observed in Katwari v. Sita Ram Tewari 1921 All. 118, already referred to, by Banerji, J., who delivered the judgment of the Court:
Section 20, Clause (2), Agra Tenancy Act, distinctly prohibits a Court from transferring an occupancy holding in execution of a decree. It seems to me to be immaterial whether the decree ordered sale or whether it was a simple money decree. What the decree-holder is now seeking is to sell an occupancy holding in execution of his decree. This is prohibited by the provisions of Section 20, and the Court executing the decree is bound to carry out the mandatory provision of the section.
13. In the latest Full Bench case Cantonment Board v. Kishan Lal 1934 All. 609 the learned Chief Justice, after referring to that case, expressed the following opinion:
That the ratio decidendi of the Full Bench case wan that where there is some statutory enactment which prohibits the sale of some property, then it is the duty of the executing Court to refuse to sell it, even though a decree has been passed by another Court. When an execution Court refuses to execute it, it is not really holding that the decree was passed without jurisdiction or is not really setting aside the decree, but is merely staying its hand from proceeding further, because it is itself prohibited by law from selling the property. There may accordingly be cases where the decree is incapable of execution or is void and a nullity, in such a way as to make it impossible for the executing Court to execute it or there may be cases where there are certain statutory provisions which prevent the executing Court from proceeding to sell certain property, for instance, where the sale of certain land is prohibited and not necessarily their attachment and order for sale. In such cases, it may be possible for the Court in one sense to go behind the decree and not to execute it; but in reality the Court is merely staying its own hand and not enquiring into the jurisdiction of the Court which passed the decree.
14. I find myself in entire agreement with the views expressed in these passages, which do not in any way call in question the correctness of the decision in Katwari v. Sita Ram Tewari 1921 All. 118. Mukerji, J., has expressed some vague doubt about the soundness of the view taken, in that Case, for tie says:
With all respect, I have some doubt in my mind as to the correctness of this decision; but it is not really necessary to doubt the correctness. Even if it be a correct decision, the learned Judge who delivered the judgment and the two learned Judges who agree with the judgment expressly held that an executing Court could not go behind the decree. The reason for non-execution of the decree in its terms was not existent within the decree or was not existent in the want of jurisdiction on the part of the Court passing the decree, but resided in a rule of law which stood apart from the decree.
15. Even this reasoning is applicable to the circumstances of this case. It was not disputed in Katwari v. Sita Ram Tewari 1921 All. 118 that the property to be sold was an occupancy tenure; whereas in the present case the fact that the property is of the description mentioned in Section 11, Pensions Act, is in controversy. The question is whether a Court is bound to refuse to hear evidence which is offered to show that the property is one the sale of which is prohibited by Section 11, Pensions Act. In. my opinion the Court must ascertain the truth of the allegation that it has no jurisdiction to sell the property which it is required to sell. The only bar that can be suggested is that of res judicata arising from the finding of the Court in the suit that it was not shown by the contesting defendant that the property is non-transferable. Whore the jurisdiction of a Court is challenged, it cannot refuse to enquire into questions on which its jurisdiction I depends. The rule of res judicata, as contained in Section 11, Civil P.C. does not in terms apply, except where the plea is taken in a suit. The general principles of the law of res judicata are. however applicable to execution proceedings. The appellant had not contested the suit, and the decree against him was ex parte. His co-defendant had raised the question, but failed to establish her allegation. Apart from any bar which may exist as between the decree-holder and the appellant in consequence of the latter not having raised the question in the suit, though he might or ought to have done so, the finding actually recorded between the decree-holder and another defendant cannot be res judicata between the parties. The next question is whether, in applying the general principle of res judicata, the terms of explanation 4 to Section 11 are applicable, and the fact that the appellant might and ought to have raised the question (assuming he could have raised it - a point which I will discuss later) precludes him from raising the question now. There is considerable difference of opinion on this question. There is however little divergence of opinion so far as the authorities of this Court are concerned. It has been held that the rule of constructive res judicata, as embodied in explanation 4 to Section 11, Civil P.C. does not apply to execution proceedings: see Rup Kuari v. Ram Kirpal Shukul (1881) 3 All. 141, Kalyan Singh v. Jagan Prasad 1915 All. 344, Sheo Mangal v. Mt. Hulsa 1922 All. 413 and Ram Charan v. Salik Ram 1930 All. 628. In some cases the Calcutta High Court has taken the same view, e.g., Umed Ali v. Abdul Karim (1908) 35 Cal. 1060. There is yet another ground on which it can successfully, he contended that the appellant is not barred. The question directly and substantially in issue in the previous case was whether the mortgage deed was invalid; whereas the question now before the Court is whether the Court has power to sell the property. The power of the Court to sell was not directly and substantially in issue in the suit.
16. Moreover, I think it was not open to the appellant to prove in the suit that the property was not transferable. He had himself mortgaged the property, representing to the mortgagee that he had the power to mortgage and that the property was such that could be mortgaged. He was estopped from, derogating from his own grant and from pleading that his, representation, on which the mortgagee advanced the money, was incorrect. This has been repeatedly held by this Court. See, for instance, Muhammad Muzamil-ullah Khan v. Mithu Lal (1911) 33 All. 783 and Bisumbhar Dayal v. Parshadi Lal (1912) 16 I.C. 629. In a case like this, the mortgagor may well consider it futile to contest the mortgagee's suit. It cannot be rightly said that lie is likewise estopped from objecting to the Court selling the property. To hold otherwise will be to create a very anomalous position. Where a person mortgages property which the law prohibits the Court from selling, lie cannot be heard to plead, when a suit is brought on foot of the mortgage, that the property is inalienable, as he is estopped; and when the Court proceeds to sell the property in execution of decree, he is told that he might and ought to have raised the question in the suit itself. It is true in some cases a mortgagor may not be estopped, if it is found that the mortgagee was aware of the character of the property; but in a majority of cases this is not so. The mortgagor in such cases makes a representation, as regards a fact, namely, that the property is alienable. It is not a case of inherent disability, as in cases of mortgages by a minor or a disqualified proprietor, in which estoppel, being against statute, does not apply.
17. In the present case, the mortgage deed mentions two distinct rights in the shares which the mortgagors are said to have possessed: the proprietary right, and their right to hold the same revenue free. It is possible that, so far as they may be grantees of the revenue, the property may be of the description mentioned in Section 11, Pensions Act, and the rest may not be of that description. In all the circumstances of the case and for the reasons discussed above, the lower Court should have given an opportunity to the appellant to establish that the property, or some incidents thereof, cannot be sold in execution of decree. Accordingly, I would remit the following issues to the lower Court:
Whether the property sought to be sold by the decree-holder is such property as is declared incapable of sale by Section 11, Pensions Act (Act 23 of 1871).
Rachhpal Singh, J.
18. I agree. I would however like to add that it is with considerable amount of hesitation, that I have come to this conclusion. It appears to me that no other course is open to us in view of the opinion expressed in some of the cases decided Ty this Court. I would however like to make a few observations in connection with the case before us. The facts of the case are set forth in the order of my learned brother, and it is therefore unnecessary to repeat them.
19. Cases in which judgment-debtors may raise a plea in the execution department that Courts, executing decrees cannot sell properties sought to be sold may come under the following three categories: (1) Where want of jurisdiction in the Court which passed the decree is patent on face of the record. (2) Where a plea of want of jurisdiction had been taken at the time of the trial and the Court decided the point against the defendant after considering the evidence produced in the case in respect of the plea of want of jurisdiction. (3) Where a defendant has not entered appearance and an ex parte decree has been passed against him.
20. I will, at first, take up the case in which want of jurisdiction in the Court which passed the decree appears on face of the record. By 'jurisdiction' is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter, or commission under which the Court is constituted or may be extended by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. Halsbury's Laws of England, Edn. 2, Article 1176, p. 531. It should also be borne in mind that that it is a fundamental rule of law that a judgment of a Court without jurisdiction is a nullity. It is well settled that where by reasons of any limitations imposed by statute, charter, or commission, a Court is without jurisdiction to entertain any particular action or matter, neither the express acquiescence nor the express consent of the parties, can confer the jurisdiction upon the Court,: Mulla's Civil Procedure Code, Edn. 10, p. 125. This is also the view which has been accepted in some of the American cases which are cited in Hukam Chand's Law of Res Judicata, pp. 398 and 399:
In Elliot v. Peirsol 1 Ret. 340, Trimble, J., said that if a Court should act without authority its judgment and orders are regarded as nullities. They are not voidable but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.
21. In Holmes v. Eason 8 Lea 760 the Tennessee Supreme Court said:
A void judgment 13, in legal effect, no judgment. It neither binds nor bars any one. All acts performed under it, and all claims derived from it are void, parties attempting to enforce it are trespassers.... No action is required to revoke it; it is null in itself. The nullity ought therefore to appear on its face.
22. If the case reported in Cantonment Board, Agra v. Kanhaiya Lal 1933 All. 163 is considered in this light, then, I would say, with all respect, that it was correctly decided. Where a judgment is passed without jurisdiction, it would be wrong to hold that the judgment-debtor cannot show in the execution proceedings that it is wholly null and void. The condition precedent however is that the nullity should appear on the face of it. Take the following instance: The Revenue Courts are Courts of limited jurisdiction and have no power to pass a simple money decree (except in case of rent due) or a mortgage decree. Suppose a tenant, creates a mortgage of his tenancy, the mortgagee goes to the rent Court and asks for a decree for sale of mortgaged tenancy land. The Court passes an ex parte decree against the defendant. In such a case it will be certainly within the competence of the Court executing the decree not to execute it for the simple reason that it was without jurisdiction. In the words of my Lord, the Chief Justice, in Cantonment Board v. Kishan Lal 1934 All. 609:
Prima facie a Court, which has no jurisdiction to entertain a claim, cannot by seizing the case usurp jurisdiction and then by deciding that it has jurisdiction make its decision binding on the defendant.
23. Coming to the second class of cases we find that the position is somewhat different. The question which arises in such cases is this: Can a defendant, who takes the plea of want of jurisdiction raise the same plea in execution department when in the regular suit, after evidence has been recorded in respect of the plea, that point has been decided against him. For instance, in the case before us Mt. Madina one of the mortgagors had contested the suit. She had taken a plea that the mortgage was invalid as it offended against the provisions of Sections 4, 6 and 12, of Act 23 of 1871 (Pensions Act). The Court framed an issue in respect of this plea. The parties produced evidence and then the point was decided against Mt. Madina. If she had come forward in the execution department and had raised the plea that the mortgaged property was not liable to be sold because of the provisions of the Pensions Act referred to above, then, I would have been prepared to hold that she was incompetent to take such a plea. The reasons for this are very lucidly stated in Wright v. Douglas 10 Barb. 111, cited in Hukam Chand's Law of Res Judicata at p. 440, and are as follows:
The want of jurisdiction may always be-shown by evidence, except in one solitary case, that is, when jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favour of the party who avers jurisdiction, then the question of jurisdiction is judicially decided, and the judgment record is conclusive evidence of jurisdiction, until set aside or reversed by as direct proceeding.
24. In a large number of cases noticed in Hukam Chand's Law of Res Judicata at pp. 474 and 475, the view expressed is that where a Court has jurisdiction, it has a right to decide every question which occurs in the case and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. The reason for the rule has thus been stated, in Voorhees v. The United States Bank 35 U.S. 440:
The error of he Courts however apparent can be only examined by an appellate power and by the laws of every country a time is fixed for such examination, whether in rendering judgment, issuing execution, or enforcing it by process of sale or imprisonment.... If that time elapses, common justice requires that, what a defendant cannot directly do in the mode pointed out by law, he shall not be permitted to do collaterally by evasion. A judgment, irreversible by a superior Court cannot be declared a nullity by any authority of law. Is after its rendition it is declared void for any matter which can be assigned for error, only or a writ of error appeal, then the said Court not only usurps the jurisdiction of an appellate Court, but collaterally nullifies what such a Court is prohibited by express statute law from even reversing. If the principle once prevails that any proceeding of a Court of competent, jurisdiction can be declared to be a nullity by any Court after a writ of error of appeal is barred by limitation, every Country Court or Justice of the Peace in the Union may exercise the same right, from which our own judgment or process would not be exempt.
25. It appears to me, if I may say so with respect, that the same view is expressed by My Lord, the Chief Justice, in Cantonment Board v. Kishan Lal 1934 All. 609 (at p. 726); where he observed:
But to hold that an executing Court must, always inquire into the question of the jurisdiction of the Court which passed the decree would be to reopen matters which might have been the subject of the controversy in the original suit and which might well have been decided on a consideration of the oral and. documentary evidence. Such questions may be mixed questions of law and fact, for example, as to the place where the cause of action arose, the place where the contract was broken, the sub-division in which the property in dispute was situated, the Mature and character of land as to whether it is saleable or not and the validity of certain transfers. All such questions are properly speaking questions which arise for consideration in the suit itself and which have to be determined on an examination of the evidence on the record. It would be too much to lay down that the executing Court can go behind these findings and reopen the question and determine afresh that the Civil Court decided this question wrongly and, therefore improperly usurped jurisdiction.
26. In the case of Cantonment Board v. Kishan Lal 1934 All. 609, it was held that:
Where a suit filed in the Civil Court, is, under the Agra Tenancy Act, 1926, cognizable by the Revenue Court alone, but no objection as to jurisdiction is taken or if taken is disallowed, and no appeal is preferred from the judgment to the District Judge, nor there is further remedy sought from the High Court, it is not open to the defendant in the suit to raise the question of jurisdiction in the execution department and contend that the Civil Court has no jurisdiction to entertain the suit at all.
27. The principle of this ruling would have been clearly applicable to the case before us if Mt. Madina had come forward and had raised a plea that the property was not liable to be sold on account of the provisions of the Pensions Act. In Kalipada Sirkar v. Hari Mohan Dalal 1917 Cal. 844 (at p. 638 of 44 Cal.), the following observations were made:
The safest course to follow is to adhere rigidly to the established principle that every order and judgment however, erroneous, is, in the words of Lord Cottenham in Chuck v. Cremer 2 Phil 113, good until discharged or declared inoperative, and that the execution Court cannot enquire into the validity or propriety of the decree. This, no doubt, assumes that there is a valid decree in existence, that is, an adjudication by a Court of Justice, a decree or order which has not ceased to be operative and is capable of execution.
28. On behalf of the appellant reliance was placed on a Full Bench ruling of the Calcutta High Court, Gora Chand Haldar v. Praulla Kumar Roy 1925 Cal. 907. I have perused the case and I think that it is distinguishable from the case before us. The head note of that ruling runs thus:
Where decree presented for execution was (made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing Court is authorised to question the validity of a decree.
29. I would place this case in the first category as being one in which the decree was null and void because the Court granting the decree has no jurisdiction and that fact appeared on the face of the record. A Court has jurisdiction both to decide every question which occurs in the case as well as its judgment, until reversed, is regarded as binding in every other Court. I may point out here that in the Calcutta case it was conceded that the executing Court will not be entitled to question the jurisdiction of the Court passing a decree, where facts have to be investigated. I quote the argument on this point from the above mentioned Calcutta ruling:
Where there is an apparent nullity, the executing Court can certainly question the lack of inherent jurisdiction and refuse to proceed. Where however facts are to be investigated, the matter is different.
30. If it be considered that the learned Judges who decided the above mentioned case intended to lay down that the Court executing a decree can permit the judgment-debtor to take the plea that the Court passing the decree had ho jurisdiction, even, after that point had been heard and decided against him in the original suit, then, I, most respectfully, beg to dissent from that view. The view expressed in the Full Bench ruling reported in, Gora Chand Haldar v. Prafulla Kumar Roy 1925 Cal. 907 was dissented from in a Full Bench ruling of this Court, Cantonment Board v. Kishan Lal 1934 All. 609. In the case before us Mt, Madina, who defended the suit raised a plea that the mortgage was invalid because it related to properties which could not be mortgaged in view of the provisions of the Pensions Act. This was denied by the plaintiff and an issue was framed. The decision of the question depended on the evidence which could have been produced in the case by the parties. Evidence was produced and the Court gave a definite finding that the plea was not established. Under these circumstances I am clearly of opinion that Mt. Madina could not have been allowed in the execution department to reagitate the same question which had been decided against her. It is said that when a defendant in a case like this raises the plea which has been decided against him in the former suit, he is not asking the Court to hold that the decree was invalid but he is asking that owing to the statutory but the property is not liable to be sold. I personally see no difference between the two cases. In reality he is asking that he should be permitted to re-agitate the same plea which has been rejected in the regular suit and to produce evidence to show that the judgment which has otherwise become final was wrong.
31. In view of the decision in Cantonment Board v. Kishan Lal 1934 All. 609 he cannot be permitted to take this course. When the judgment-debtor says in a case like this that be is only asking the Court not to execute the decree because of some statutory prohibition, then the simple reply to this would be that the plea is no longer open to him. He will be told that the question as to whether or not the property was: liable to be sold in view of some statutory law has already been decided against him finally, and it has already been held that the property is saleable and so the same question cannot be permitted to be raised a second time. When we say that the question of jurisdiction can be raised at any time all that it means is that it can be raised by way of appeal or otherwise in the course of proceedings of the Court, whose jurisdiction is questioned. Caspersz in his Law of Estoppel, Edn. 4, p. 862, para. 830, says:
It is commonly said that a question of jurisdiction may be raised at any time, but as pointed out in Naro Hari v. Anpurnabai (1887) 11 Bom. 160n, the question must be raised by way of appeal or otherwise in the course of the proceedings of the Court whose jurisdiction is questioned. In that case Anpurnabai was hold to have acquiesced in the irregularity and was debarred from raising the question of jurisdiction after the proceedings were carried to completion.
32. Now I come to the third class of such cases. Cases coming under this head may be of two descriptions: There may be cases in which there was only one judgment-debtor who did not appear to defend the suit. The other class may consist of cases in which some of the judgment-debtors raised the plea of want of jurisdiction, but it was decided against them while the other judgment-debtors did not appear to defend the suit. In, Katwari v. Sita Ram Tewari 1921 All. 118, it was held that where a mortgage decree has been passed for the sale of occupancy holding, it was open to an executing Court to go behind the decree and to hold that it could not be executed in view of the provisions of Section 20 (Clause 2), Tenancy Act. The view expressed in this case certainly supports the contention of the appellant. In that case an ex parte decree on foot of a mortgage deed had been obtained. I may be permitted to remark that the facts of that case were somewhat different from the facts of the case before me. In that case the mortgage deed itself recited that the property mortgaged was occupancy holding, in other words it appeared on the face of the record that the decree had been passed by a Court which, had no jurisdiction in view of the statutory bar enacted by Section 20 of the old Agra Tenancy Act. On the other hand in the case before us the statutory bar can only arise if the appellant who had not appeared to defend the suit is able to prove by producing evidence that the provisions of the Pensions Act are applicable to the property sought to be sold. In another recent ruling Sukhdeo v. Dongar 1935 All. 588 a Bench of two learned Judges of this Court has held, that:
Even if an occupancy holding has been mortgaged and a decree for its sale has been obtained, objection can still be raised in the execution department that the property is not saleable in-execution of the decree and the execution Court would be bound to decline to sell it.
33. When we read the three rulings Katwari v. Sita Ram Tewari 1921 All. 118, Cantonment Boar v. Kishan Lal 1934 All. 609 and Sukhdeo v. Dongar 1935 All. 588, it appears that the following two pro-positions have been laid down: (1) Where a suit filed in the civil Court is under the Agra Tenancy Act, 1926, cognizable by the Revenue Court, alone, but no objection as to jurisdiction is taken or if taken is disallowed, and no appeal is preferred from the judgment, to the District Judge, nor there is further remedy sought from the High Court, it is not open to the defendant in the suit to raise the question of jurisdiction in the execution department and contend that the, civil Court had no jurisdiction to entertain the suit at all. (2) If a defendant however does not appear and an ex parte decree is passed against him, then, it is open to him to raise the question of jurisdiction in the execution department which he could have raised at the trial.
34. Somewhat anomalous position may arise in a case where there are two or more defendants. Take the instance of the case before us:. Mt. Madina, had taken a plea in the trial Court that the mortgage was invalid because-of the provisions of the Pensions Act. An issue was framed and was decided against her. If she had now come forward to take the same plea in the execution department, then,, according to the rule expressed in Cantonment Boar v. Kishan Lal 1934 All. 609, she could not have been permitted to reagitate the same question.
35. But as the appellant had not appeared in the trial Court and the decree passed against him was ex parte, so according to the view expressed in Katwari v. Sita Ram Tewari 1921 All. 118 and Sukhdeo v. Dongar 1935 All. 588, it is still open to him to raise the plea that the property cannot he sold. The results are somewhat curious. In the same case one defendant is not permitted to take a plea on the ground that the question has already been decided against him after contest. At the same time the other defendant is permitted to raise the same plea which had been decided against his codefendant after contest. It may be that the defendant who is allowed to take the plea in execution department may succeed in establishing his point. The result of this may be that even the share of the other defendant against whom the decree was passed after contest may not be sold in the execution department on the ground that the property could not have been mortgaged or sold in view of the provisions of the Pensions Act. Thus there would be two contrary findings in one and the same case. At the trial the decision may go against the defendant while in the execution department it may go against. the plaintiff. It appears to me that this state of things is unsatisfactory and requires reconsideration. My personal opinion is that the correct rule which should be applied to cases of this description is that:
The want of jurisdiction may always be shown by evidence except in one solitary case, that is, when jurisdiction depends on a fact that is litigated in a suit, and is adjudged in favour of the party who avers jurisdiction, then the question of jurisdiction is judicially decided, and the judgment recorded is conclusive evidence of the jurisdiction, until set aside or reversed by a direct proceeding.
36. If the question were still an open one I would hold that in a case where there arc two defendants, and one of them takes the plea of want of jurisdiction and it is decided against him then in view of Explanation 4, Section 11 the matter should be deemed to have been decided not only against the defendant who appeared to contest, but also against the other defendants who failed to appear. It is true that Section 11 docs not in terms apply to the' execution proceedings in a suit inasmuch as each of such proceedings is not a separate suit, but is only a proceeding in the same suit. But I think that the general principles of res judicata should be applicable to such proceedings. It however appears to me that so long as the view taken in the Full Bench ruling Katwari v. Sita Ram Tewari 1921 All. 118, is not reconsidered it is not binding on us. It is under these circumstances that I have felt bound to agree with the order proposed by my learned brother.