R.C. Patnaik, J.
1. The short question for de-termination in this revision is whether the objection raised by the petitioner to the executability of the decree for eviction was barred by principle of res judicata.
2. Opposite parties 1 to 8 filed T. S. No. 148/71 for eviction of the petitioner from the house occupied by him as tenant. The suit was filed on 5-5-1951 when the Orissa House Rent Control Act. 1950 was in force. A decree for eviction was passed on 17-2-1962 when the Orissa House Rent Control Act (Act 31 of 1958) was in operation.
3. It was conceded at the Bar that the suit for eviction of the petitioner-a tenant was not entertainable by the Civil Court and no decree for eviction could have been passed. It was show-ever, urged by the counsel for the opposite parties that the question of absence of jurisdiction of the Civil Court to entertain a suit for eviction was neither raised in the suit nor in the appeal carried from the decree, so the principle of res judicata precluded the petitioner from raising the plea of absence of jurisdiction in the execution proceeding. The learned counsel for the opposite parties further urged that the petitioner after receipt of the notice to show cause why the execution should not proceed not having objected to the executability of the decree before the court directed the execution to proceed disabled himself from impugning the executability of the decree at a later stage of the proceeding.
4. Jurisdiction of a court is of various types, namely, (a) inherent, (b) territorial, (c) pecuniary and (d) personal. In the case of territorial, pecuniary or personal jurisdiction, unless objection is raised at the proper time it may not be raised at a later stage. A decree passed by a court lacking in such jurisdiction is not a nullity. In the case of inherent jurisdiction, however, the question is different. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. Objection to lack of jurisdiction cannot be waived.
Whereas an executing court cannot go behind the decree and must execute it as it stands: the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have been in seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or a decree passed, or some such other ground which could have, the effect of rendering the court entirely lacking in jurisdiction in respect of the subject master of the siad or over the parties to it: see Hira Lal Patni v. Kali Nath, AIR 1962 SC 199.
5. So in view of the conceded position that the Civil Court could not have been in seisin of the present suit, the decree passed by it was a nullity and an objection to its executability could be raised even in the execution proceeding notwithstanding the fact that such an objection was not raised either in the suit or in the appeal from decree.
6. The next question is. if the petitioner was precluded from raising objection to the executability of the decree by reason of constructive res judicata. It was urged that objection was not raised at the proper time and the executing court having directed the execution case to proceed, it was no longer open to the petitioner to raise objection at a later stage.
7. Shri S.P. Misra, learned counsel for the petitioner contended that factually the point urged by the opp. parties was not correct. Objection was raised by the petitioner before the executing court directed the execution case to proceed and secondly assuming that an objection by the petitioner had not been raised in proper time, principle of constructive res iudicata did not apply when the question is a pure question of law touching the inherent jurisdiction of the court which passed the decree.
8. From a perusal of the orders passed in the execution case, it appears that an application under Section 47 of the Civil P. C. was filed by two other judgment-debtors on 23-11-1974. The application was registered as Misc. Case No. 436 of 1974. On 2-1-1975 further proceeding in the execution case was stayed till disposal of the miscellaneous case. By order dated 18-4-1975 the objection under S. 47 was sustained in part, the amount under execution was reduced and the decree-holders were directed to amend the execution petition accordingly. The direction of the executing court clearly indicated that all other objections were negatived and the execution case was directed to proceed. The learned counsel for the opposite parties relied upon the Full Bench decision of this Court reported in AIR 1972 Orissa. 119 and contended that the direction of the learned Munsif that the execution case was to proceed operated as res iudicata and no objection to executability of the decree could be raised at a later stage. Shri Misra for the petitioner however contended that the principle had no application where objection was a pure question of law touching the inherent jurisdiction of the court. In, the ease of Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jee Jeebhoy, AIR 1971 SC 2355 the Supreme Court observed:--
'........ .in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i. e. the interpretation of a statute, it will be res iudicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'the matter in issue' in Section 11, Civil P. C., means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court of a decision of the Court sanctioning some' thing which is illegal, by resort to the rule of res Iudicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res iudicata. for a rule of procedure cannot supersede the law of the land.'
Their Lordkhips also observed:--
'........ .A decision on an issue of law will be as res iudicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, not when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding. nor when the earlier decision declares valid a transaction which is prohibited by law.'
Following the aforesaid dictum of the Supreme Court that where the question is one purely of law touching inherent jurisdiction of the Court the party is not precluded from raising the plea at a later stage by principle of res judicata I hold that assuming that the court had directed the execution case to proceed by the time the petitioner raised objection to the executability of the decree, the petitioner was not precluded from raising his objection. In view of the conceded position, the decree was a nullity and it was open to the petitioner to resist its executability even at later stage. In the result, the revision is allowed, the orders of the courts below are set aside and the objection raised by the petitioner under Section 47 is sustained. There would, however, be no order for costs throughout.