S. Velu Pillai, J.
1. In this appeal by the decree-holder the question fot decision is, whether in execution the sale of item 1 of the properties in the schedule of the decree can be allowed to take place. The decree comprised two items of properties and was based on a compromise, which made both of them liable for the satisfaction of the amount of the decree and to which the second defendant, though interested in item 1, was not a signatory. At first, the sale of item 2 was held, but was afterwards set aside on the ground, that there was not saleable interest in it. Subsequently, on an execution petition dated Vrischigom 21, 1125, for the sale of item 1, notice was served on the parties interested including the second defendant, and no objection being taken to it, the execution Court on Vrischigom 30, 1125, ordered execution to proceed against that item. On Makarom 11, 1125, the second defendant filed an objection to execution, in which the validity of the decree as against him based on the compromise which was not signed by -him, was not taken.
He also applied for review of the earlier orderallowing execution against item 1. His prayer was rejected and an appeal preferred by him did notmeet with success and was dismissed on. March 18, 1953. The decree-holder then took steps to execute the decree against item, 1, when he was met by the present objection by the second defendant, that the decree is not valid Or binding an him. The execution Court dismissed the objection, buton appeal the Subordinate Judge allowed it.
2. The chief contention of the learned counsel for the decree-holder is, that the second defendant is precluded by the rule of constructive res judicata from raising the objection to the validity of the decree at this stage. It is now too late in theday to contend, that the principle of constructiveres judicata has no application to execution proceedings; but the answer was, that the rule cannot operate to preclude a party, from pleading a defect of jurisdiction in the Court. The law has been laid down by the Supreme Court in Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65, in which the majority of the Court agreed with the view of Ghulam Hasan, J. that apart from lack of inherent jurisdiction of the Court, the rule will operate to preclude a party even from relying on a defect of jurisdiction when he has failed to do so earlier. The case was followed by the Patna High Court in Dhirendra Nath v. Satish Chandra, AIR 1956 Fat 4, in which, the validity of a sale in execution, held contrary to the provisions of Minos and Minerals (Regulation and Development) Act, 1948, was in issue and by Chakravartti C. J. and S. R. Das Gupta, J., of the Calcutta High Court in Newton Hickie v. Official Trustee of West Bengal, AIR 1954 Cal 506. It is unnecessary to cito other cases in which a similar view has been held.
Nothing to the contrary has been laid down,as contended, by the Division Bench of this Courtwhich decided Parameswaran Nair v. AyyappanPillai, 1958 Ker LT 1021 : (AIR 1959 Kerala 206),in which it was only held, that an order recognisingthe assignment of a decree, did not conclude thejudgment-debtor on Ins objections to delivery ofpossession pursuant to a court sale, the validity ofwhich was still in dispute in other collateral proceedings. The execution Court which passed theorder on Vrisehigom 30, 1125, suffered from noinherent want of jurisdiction, pecuniary or territorial, to execute the decree and the defect in theproceedings, which undoubtedly existed by reasonof the second defendant being no signatory to thecompromise even if it pertains to jurisdiction, is notsuch as to deprive the Court of all its jurisdictionto execute the decree as it stands. I therefore hold,that the second defendant is now barred by therule of constructive res judicata from objecting tothe execution of the decree against item 1. Thisappeal is therefore allowed with costs.