J.S. Verma, J.
1. This appeal under Clause 10 of the Letters Patent is against the order dated 19-3-1976 passed by a learned single Judge of this Court in Misc. (Second) Appeal No. 307 of 1973, arising out of execution proceedings.
2. A mortgage was executed in the year 1926 of 8 annas share of Mahal I of mouza Dundi, including about 300 acres of khudkasht lands. A decree for sale of the mortgaged property was obtained by the mortgagees in the year 1938, the total amount recoverable being Rs. 12,233/-. The judgment-debtors then moved the Debt Relief Court which scaled down the debt and made it payable in 19 instalments, the last instalment being payable some time in the year 1960. The judgment-debtors then committed default in payment of the instalments. The decree-holder obtained a certificate from the Deputy Commissioner, Jabalpur, under Section 13 (3) of the C. P. and Berar Relief of Indebtedness Act, making the unpaid balance recoverable as under a final decree passed by the civil Court. This was some time in the year 1949.
3. The first execution application was filed by the decree-holder in Dec. 1949, which was dismissed as infructuous in 1951. The second execution application filed in Dec. 1954 was also dismissed after realisation of some amount. The third execution application was then filed by the decree-holder. Several objections were filed by the judgment-debtors and after rejection of the same, 43-45 acres of khudkasht lands, included in the mortgaged property, were sold by the executing Court on 18-10-1967 and were purchased by Jawahar Singh.
4. After the auction sale held on 13-10-1967, an application was made by the judgment-debtor on 28-10-1967 for setting aside the sale. This application was dismissed and the order of the executing Court rejecting the judgment-debtor's application dated 28-10-1967 became final with the dismissal of the judgment-debtors' second appeal (M. S.' A. No. 5 of 1971) on 21-4-1971 by this Court.
5. In the meantime, the judgment-debtors filed another application on 11-1-1971, more than three years after the auction sale for setting aside that sale on the ground that it was void, the mortgage debt having stood discharged by virtue of the provisions of the M. P. Abolition of Proprietary Rights Act 1950, in accordance with which the only right of the mortgagee decree-holder was to claim compensation. This application was rejected by the executing Court on 31-7-1973. The executing Court held that such an objection was barred on the principle of constructive res judicata the same not having been raised earlier, when several objections were taken to the executability of the decree. It was also held that the scheme of Rules 89 to 92 of Order 21, Civil P. C., made it clear that no further objection to the sale was contemplated by the Court, which was not covered by Rules 89 to 91. On merits also, the objection was held to be without any merit. The executing Court further held that even the residuary Article 137 of the Limitation Act provided for three years limitation and the objection being filed beyond the period of three years from the date of sale was time barred for this reason also. The judgment-debtor then filed an appeal to the District Court (Misc. Civil Appeal No. 8 of 1973) which was dismissed on 30-11-1973. The objection of the judgment-debtors was dismissed on merits and the principle of constructive res judicata was also held to be applicable.
6. The judgment-debtors thereafter filed Misc. Second Appeal No. 307 of 1973 in this Court which has been allowed by a learned single Judge of this Court. The objection has been upheld on merits and it has been further held that the principle of constructive res judicata has no application in the present case, the sale being a nullity because the decree had become incapable of execution. It has been held that such an objection could be raised at any time when the decree was sought to be executed and, therefore there is no question of any limitation or objection being barred by the rule of constructive res judicata. The judgment-debtors have, therefore, succeeded ultimately before the learned single Judge of this Court. The decree-holder and the auction-purchaser have thereafter filed this Letters Patent Appeal.
7. The first question is whether the principle of constructive res judicata is applicable to shut out the fresh objection taken by the judgment-debtors in their application dated 11-1-1971 after the sale was held on 18-10-1967, There is no dispute that this objection based on the provisions of the M. P. Abolition of Proprietary Rights Act, 1950, could have been taken by the judgment-debtors not only soon after the sale but much before the sale was held and even though the objection was available it was not raised in the several objections filed prior and subsequent to the sale till it was taken for the first time in the judgment-debtors' application filed more than three years after the sale on 11-1-1971. There is also no dispute that the principle of constructive res judicata is attracted in such a situation and that it applies also to execution proceedings. The only ground on which an attempt has been made by Shri Padhye, learned counsel for the respondents, to avoid the applicability of the principle of constructive res judicata is the decision in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 wherein it has been laid down that an objection to the executability of a decree on the ground that it is a nullity, can be taken at any stage even at the stage of execution and even in a collateral proceeding. In our opinion, the principle laid down in Kiran Singh's case (supra) relied on by Shri Padhye, is of no assistance to the judgment-debtors in the present case.
The question before us is not whether such an objection could be taken in the execution proceeding, but the real question is whether such an objection could be permitted to be taken more than three years after the sale made by the executing Court, when no such objection was taken while raising several objections at different stages prior and subsequent to the Court auction. Kiran Singh's case (supra) can only assist the judgment-debtors to the extent that it enabled the judgment-debtors to raise such an objection during the execution proceedings. However, while raising several objections taken from time to time, prior and subsequent to the sale, no such objection, even though available, was taken by the judgment-debtors. This being so, the effect of applying the rule of constructive res judicata in the present case is not to shut out such an objection at the stage of execution or in a collateral proceeding, but only to restrain the judgment-debtors from reopening the execution case, when after rejection of the judgment-debtors previous objection dated 28-10-1967, by virtue of Order 21, Rule 92, Civil P. C., the stage had reached for the executing Court to confirm the sale and make it absolute. The judgment-debtors' attempt actually is to reopen the execution proceedings after they had reached the stage of Order 21, Rule 92. In our opinion, refusal to permit the raising of any fresh objection thereafter having the effect of reopening the execution proceeding, does not amount to depriving the judgment-debtors of raising such an objection at the stage of execution proceedings: In our opinion,, Kiran Singh's case (supra), relied on by Shri Padhye, has no application to this case.
8. As earlier stated, there is no dispute that the principle of res judicata applies to execution proceedings and also to subsequent stages of the same proceeding. It was held in Prem Lata v. Lakshman Prasad, AIR 1970 SC 1525 that the judgment-debtor not raising any objection as to limitation in regard to execution of a decree was barred by the principle of res judicata from raising that objection at a later stage. The applicability of this principle to execution proceedings not being in dispute, reference to any other authority is not necessary.
9. It was also contended by learned for the respondents that the decree having become void or a nullity as the result of provisions of the Abolition Act, it could be ignored and did not require being set aside. For this reason, it is argued that such an objection was not even required to be raised and a declaration could be obtained at any time that the sale was void. There is a basic fallacy in this argument as we shall presently show. Moreover, the contention itself concedes the need of a judicial determination to avoid the legal consequences of the decree and this is what was sought by the judgment-debtors and granted by the learned single Judge. It means that the judgment-debtors' opinion alone about the decree cannot avoid the effect and legal consequences thereof, till judicial determination is made that it is void. The judgment-debtors can only resort to a suitable remedy for obtaining such a judicial determination and only thereafter the decree can cease to be effective. This being so, the remedy resorted to has to be one prescribed by law and not one devised by the judgment-debtors of their own liking. The need of such judicial adjudication to avert the consequences of a decree considered to be void is a sufficient answer to the contention itself.
10. Admittedly, the decree in the present case did not suffer from any infirmity when passed and even when it was sought to be executed prior to the Abolition Act. The argument is that it has become void due to the subsequent event of the Abolition Act coming into force, by virtue of some of the provisions therein. It is, therefore, not even a case of invalidity attaching to the decree from its inception or being apparent from its face. Ostensibly decree possesses all the characteristics of a valid decree passed by the competent authority which at least when passed was undoubtedly valid and executable. To hold that in such a case it is open to the judgment-debtors to ignore it at their option taking the view that it has become void due to any subsequent event and claim such a declaration in the execution proceedings after the stage under Order 21, Rule 92, Civil P. C. has reached for making the sale absolute would amount to devising a procedure and furnishing remedy to the judgment-debtors not provided in law and abdication of the Court's judicial function in favour of the judgment-debtors. With respect, we are unable to subscribe to this view which is also not in consonance with the concept of nullity as understood in the recent decisions and in the writings of jurists,
11. We may now refer to the concept of nullity and the effect of a void act in the background of which such an argument has to be appreciated. It is sufficient to cite a recent decision of this Court in Union of India V. Central Government Industrial Tribunal cum Labour Court, 1979 MPLJ 808: (1980 Lab IC 361) in which the matter has been discussed at considerable length, taking note of the recent trend with reference to the up to date authorities on the point. Professor Wade's conclusions reached on a critical study of the authorities, which are quoted with approval by the learned Chief Justice in this decision, include the following, namely:--
'If not challenged in law or if the Court will not grant a remedy under the usual rules, a void act may have the effect of a valid act since it cannot be opposed. (83 Law Quarterly Review p. 526).'
It is, therefore, obvious that in order to avoid the effect or consequences of a decree which the judgment-debtors consider to be void, a remedy prescribed by law has to be resorted to for getting it declared void or set aside and unless this is done, the effect of such a decree cannot be avoided.
12. Prof. Wade, in his above article 'Unlawful Administrative Action; Void or voidable? 83 LQR 499 and 84 LQR 95, in support of his conclusions has given certain reasons culled out from the authorities referred and some of them which are useful for our purpose are as under:--
'It may be no more than a truism to point out, as in effect Lord Morris and Lord Radcliffe do, that words such as 'void' and 'nullity' are legally meaningless except in the context of an actual or assumed decision of a court. For the same could be said with truth about many legal terms. But it is an important truism for the present discussion, since a conclusion emerges; 'void' and 'voidable' are in their present application indistinguishable in meaning. The reason is simply that no disputed act of a public authority can safely be treated as void in law unless the Court can be persuaded to condemn it. It makes no difference to call it a viodable act, for the situation remains exactly the same.'
'Where the authors of the void act are 'in authority', their action prevails and produces all the legal consequences of valid action unless and until the aid of the law is successfully invoked to invalidate it.' (p. 517)
'To say that an act 'is automatically null and void without more ado' and that there is no need for an order to quash it, if it means that an act can be invalidated without any recourse to a Court of Law, conflicts directly with the truths stated by Lord Morris, Lord Radcliffe and Kelsen.' (p. 524)
13. There can, thus, be no doubt that even if the decree has become void as claimed by the judgment-debtors (about which we express no opinion), it would have its due effect entailing all consequences of a valid decree, there being no invalidity appearing from its face, till it is declared void in a judicial determination according to one of the prescribed remedies. This being so, objection to its executability on this ground was required to be raised by the judgment-debtors at the appropriate stage in the execution proceedings. Having unsuccessfully raised several objections to the executability of the decree prior and subsequent to the sale in which no such objection was raised, the principle of constructive res judicata bars the raising of this objection later in that proceeding after the stage of Order 21, Rule 92, C. P. C. had been reached.
14. Another decision which supports this conclusion is Union of India v. Om Prakash, AIR 1976 SC 1745. Their Lordships held therein that an objection based on the ground of nullity is included within the words 'or is otherwise invalid' ' used in Clause (c) of Section 30 of the Arbitration Act, with the result that objections based on the ground of nullity have to be raised in accordance with Section 30 of the Arbitration Act within the prescribed period. It is settled after that decision that an objection on the ground of nullity cannot be raised beyond the prescribed period of limitation for filing objections under Section 30 of the Arbitration Act. The same reasoning applies to the present case.
15. A contrary view which has found favour with the learned single Judge, will have the result that there would never be any finality attached to any proceeding whenever an objection is sought to be raised on the ground of nullity and it will enable the objector to devise his own procedure independent of the remedies laid down by law. Kiran Singh's case (ATR 1954 SC 340) (supra), relied on by Shri Padhye, cannot be read as going to this extent. That decision only lays down that an objection based on the ground of nullity is available in any legal proceeding, where such an order is sought to be enforced, be it an execution proceeding or a collateral proceeding. Kiran Singh's case has to be read along with the subsequent Supreme Court decisions, keeping in view the meaning and effect of nullity.
16. As earlier stated, in the present case, the judgment-debtors are being shut out from raising such an objection on the principle of constructive res judicata not during the execution proceeding, but at the end of it on the ground that they having failed to raise this objection during the execution proceeding at the prescribed stage, they are barred from reopening the execution on this ground. With respect, we are unable to subscribe to the view taken by the learned single Judge on this point,
17. In view of the above conclusion reached by us, there is no need to examine the merits of the judgment-debtors' objection which is barred on the principles of constructive res judicata, as rightly held by the Executing Court and the First Appellate Court.
18. I. A. No. 3506/76 has been filed by certain persons praying for being added as respondents to this appeal. They claim to be interested in the ultimate outcome of this appeal and for that reason they have applied for being impleaded. We do not find any ground to allow this application filed in the Letters Patent Appeal. However, Shri J. K. Agnihotry, who appeared as their counsel and supported Shri Padhye, counsel for the respondents, was also heard on merits.
19. Consequently, we allow this appeal, and set aside the order of the learned single Judge dated 19-3-1976 passed in Misc. Second Appeal No. 307 of 1973, and restore the order of the Executing Court, rejecting the judgment-debtors' objection. The appellants shall get their costs from the respondents. Counsel's fee Rs. 200/-, if certified.