Sarjoo Prasad, J.:— This appeal is by the judgment-debtor arising out of an objection under section 47 of the Code of Civil Procedure.

This appeal was analogous to several other appeals but we directed that, as the execution case which gave rise to the present appeal was being held up, this appeal should be heard and disposed of. It was accordingly placed for hearing before us. It relates to Execution Case no. 547 of 1945, and our observations will have to be confined to that execution case alone.

It appears that the plaintiffs-decree-holders obtained, on the 29th February, 1932, a decree in the Court of the Subordinate Judge at Dhanbad in Money Suit no. 261 of 1930 which was later confirmed on appeal by this Court on the 25th August, 1936. The decree-holders proceeded to execute this decree by sale of certain properties belonging to the judgment-debtor. The case appears to have a long and chequered history, and it is one of those cases which demonstrate how a decree obtained in 1932 has yet remained unexecuted for all these 18 years on account of the various obstructions successfully raised by the judgment-debtor under cover of legal procedure. The execution case was started and registered on the 18th November, 1935, and a writ, of attachment was issued. The claim under execution was for a sum of over one lakh rupees. It appears from the order-sheet that several times writs of attachment and sale proclamations were issued and on several occasions on one pretext or another the judgment-debtor succeeded in having the sale postponed. The present objection which was filed not until the 3rd of February, 1948, was registered as Miscellaneous Case no. 9 of 1948. In this objection for the first time it was alleged that the properties under execution were not saleable as being part of a Government ghatwali. The petition alleges that the estate of the judgment-debtor is known as the Pandra Estate and consists of tauzi nos. 21 and 23, of the Manbhum Collectorate, that parts of tauzi no. 21 had been attached and advertised for sale on the 17th February, 1948, and that the said tauzi being Government ghatwali was inalienable and could not be sold in execution. The petition further states that tauzi no. 23 of the petitioner's estate was sold in execution of a decree in Execution Case no. 385 of 1931. The judgment-debtor then filed a Title Suit in the Court of the Subordinate Judge at Dhanbad being Title Suit no. 41 of 1939 in which he claimed that the Pandra Estate was a Government ghatwali. The suit was, however, dismissed by the learned Subordinate Judge, and against the said decree an appeal has been preferred to this Court which is first Appeal no. 87 of 1947. The judgment-debtor accordingly prayed that his objection should, be allowed and the property should be released from attachment and sale. As I have said, this objection was filed for the first time in February, 1948. Though the execution case had been pending since 1935 and the judgment-debtor had appeared and had taken various steps in the execution proceedings and filed objections to the execution, in none of it he ever raised the contention which he seeks to advance in the present objection.

Mr. Ghosh who appears for the appellant contends that this appeal should at any rate be postponed until the disposal of First Appeal no. 87 of 1947 wherein the question of ghatwali has been raised in connection with another tauzi, tauzi no. 23, belonging to the judgment-debtor. It may be at once pointed out that the present decree-holder is not a party to the said first appeal. The First Appeal in question, although pending since 1947, has not yet been disposed of and there is hardly any chance of its being heard in the very near future. It would be, therefore, unjust that the present decree-holder should be made to stay his hands until the disposal of the said appeal which for aught we know may yet take a meandering course even after its disposal by this Court until the remedy of the judgment-debtor of an appeal to the Supreme Court is also exhausted. Mr. Ghosh contends that if it is found in the appeal that the properties in question were Government ghatwali, then the executing Court will have no jurisdiction to sell those properties. He relies upon a decision of the Judicial Committee in Satya Narayan Singh v. Satya Niranjan Chakravarty(1). The present decree-holder being not a party to the First Appeal in question, the decision given in that appeal will not be res judicata as against him. The judgment in the case may at best be used only as evidence to show that the question of inalienability was asserted in that litigation. In my opinion, therefore, it would be unfair and unnecessary to postpone the hearing of this appeal until the disposal of the said First Appeal no. 87 of 1947.

The learned Subordinate Judge in this case has held that in view of the decision in Title Suit no. 41 of 1938 the objection that the properties were part of Government ghatwalis, and, as such, inalienable was not maintainable. He also held that the doctrine of constructive res judicata was applicable to the case. He found that the judgment-debtor filed a number of objections and got the sales stayed more than once. He got instalments in some cases and on many occasions got the sale postponed by making small payments. There were a number of petitions in which the judgment-debtor agreed that the sale would take place if he did not pay the amount the next day. By this means he repeatedly took adjournments. That being so both on the ground of estoppel and constructive res judicata he was debarred from raising the question that the properties were Government ghatwalis, and, as such, not liable to be sold.

If the rule of res judicata can be applied to execution cases, in my opinion, it would pre-eminently apply to this case. It is well settled that the doctrine of constructive res judicata is applicable to execution proceedings and where a judgment-debtor fails to raise all his objections to the execution which he might and ought to have raised and the execution is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objections at a later stage of the same execution proceeding, or in a subsequent execution of the same decree. In this context reference may be made to Dula Bibi v. Parmananda Das and Sitla Sahai v. Gouri Nath(2). In the latter case Agarwala, J. relied upon an earlier decision of this Court in Mahadeo Prasad Bhagat…Defendant v. Bhagwat Narain Singh…Plaintiff .(3). It is interesting to say a few words in regard to the point which arose for consideration in this earlier decision. The judgment-debtor there objected to an execution proceeding in which it was sought to sell a property which the judgment-debtor alleged could not be sold under section 12A of the Chota Nagpur Encumbered Estates Act without obtaining the sanction of the Commissioner. The objection was not decided and the execution was allowed to proceed and the property sold. In a subsequent suit the judgment-debtor sought to recover possession of the property on the ground that the sale was void by reason of the Commissioner not having sanctioned the sale as required by section 12A of the Chota Nagpur Encumbered Estates Act. Wort, J. who delivered the judgment in that case held that the matter was res juidcata although the question whether the sale was valid for want of sanction from the Commissioner had not been expressly decided at the earlier stage when it was raised. The learned Judge pointed out that if objections to execution proceedings could be taken piecemeal one after the other, there will be no end to execution proceedings, and he observed that. When a plea in bar is not taken, or is overruled, the judgment-debtor is not at a later stage entitled to challenge the validity of the proceedings on that ground. These observations apply with equal force even to a later stage in the same execution case. In at his connection a reference may be made to a Full Bench decision of the Lahore High Court in Gauri v. Ude. I must guard myself against any assumption that I endorse all that has been said in the said decision. But I endorse with great respect what the learned Judges have there observed in connection with the application of the principles of res judicata to execution proceedings. It was held in that case that where the judgment-debtor is duly served with notice of the execution proceedings but fails to raise any objection to the proposed sale such as on the ground of exemption of property from attachment and sale under section 60. Code of Civil Procedure, at the time when the issue as to sale of the property is raised by the decree-holder and the Court then proceeds with the execution, the matter must be considered to be res judicata so as to debar the judgment-debtor from raising that objection later on the principle of constructive res judicata. Their Lordships in that case further pointed out that the question of the Court's jurisdiction to sell the property does not arise until and unless the judgment-debtor has alleged and proved the facts entitling him to claim exemption under section 60, Code of Civil Procedure. When no objection is raised by the judgment-debtor as to the saleability of the property under section 60 at the earliest opportunity the order for sale cannot be subsequently challenged and the matter cannot be raised at a subsequent stage of the same execution proceeding. It is true that in that case the objection on the ground that the property was not liable to attachment and sale under section 60, Code of Civil Procedure, was raised after the sale, but that, in my opinion, does not make any difference in principle, nor does it appear to have made any difference in the decision of their Lordships. I may here quote a relevant passage from the judgment of Bhide, J. in the decision in question: “The question of the Court's jurisdiction does not arise, as already pointed out, until and unless the judgment-debtor has alleged and proved the facts entitling him to claim exemption under section 60, Code of Civil Procedure. If the judgment-debtor fails to raise any objection at the time when the issue as to the sale of the property is raised by the decree-holder and the Courts then proceeds to order the sale of the property, I do not see why the matter should not be considered to be res judicata”.

Mr. Ghosh for the appellant relies upon a decision of this Court in Kusum Kumari v. Firm Harnath Rai Brijraj and he contends that it was open to him to raise the objection at any stage of the execution case, and the Court was bound to enquire into that objection. In that case Chatterji, J. who delivered the judgment of the Bench pointed out that an objection by the judgment-debtor to the sale of his land on the ground that it was a Government ghatwali tenure and therefore not saleable goes to the root of the Court's jurisdiction to hold the sale, and therefore cannot be summarily rejected; and the mere fact that the objection was filed late, e.g, on the date of sale is no ground for rejecting it. It was further pointed out that the holder of a ghatwali tenure holds the property not as a trustee but in his own right and is entitled to enjoy the usufruct thereof. Consequently an objection by the holder that the tenure is not saleable by reason of section 60, Code of Civil Procedure, can certainly be raised under section 47 of the Code. There is no doubt that this authority very greatly supports the contention of Mr. Ghosh, but I am afraid the question of constructive res judicata was never raised or considered in the case in question, and we do not know what the facts in that case were. It may be that the judgmental debtor in that case was not precluded from raising the question on the ground of constructive res judicata for if it were so, the point might well have been urged on behalf of the respondent to the appeal. The decision, therefore, in its ultimate analysis does not help the contention advanced by the appellant.

Mr. Ghosh also relies upon two other decisions of this Court to show that whether the property is or is not saleable can and must be gone into by the executing Court, and he argues that if a property is prohibited from sale, either by virtue of a prohibition under some particular statute or on account of the fact that it is alienable in its very nature, it affects the very jurisdiction of the Court to sell the property, and there being no estoppel against the statute, estoppel or res judicata should not be applied to such a case. The first is a decision in Rup Nath Mandal v. Jagannath Mandal. In that case it was held that under section 47 of the Chota Nagpur Tenancy Act a raiyati holding could not be sold even in execution of a mortgage decree, and it is the duty of the executing Court to guard against evasion of this statutory provision. It may be here observed that section 47 of the Chota Nagpur Tenancy Act provides in terms that “no decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding, nor shall any such right be sold in execution of any decree or order”. In that case the Munsif found that the status of the judgment-debtor was that of a raiyat. That finding was never contested by the decree-holder and was accepted by all the Courts. Therefore, on the face of it what was sought to be sold was a raiyati holding and the sale of such a holding was expressly prohibited by section 47 of the statute. Under those circumstances it was held that there was no estoppel against the statute, and that once it was found, as it had been found in that case and accepted by the parties that the lands sought to be sold formed a raiyati holding, whether the judgment-debtor took the objection or not, the sale of such a holding could not take place under the clear provisions of the statute.

The next case on which Mr. Ghosh relied was a decision in Uchit Lal Missir v. Raghunandan Tewari which is a Full. Bench decision of this Court. Here again the facts are different. The decree-holder had obtained a mortgage decree in respect of certain lands. An objection was taken by the judgment-debtor in the executing Court that by reason of section 27 of the Santal Parganas Settlement Regulation, 1872, the executing Court had no power to put up the land for sale. The objection was overruled by the Courts below, and the matter came up before a Bench of this Court which referred it to a Full Bench. The question which the Full Bench had to consider was whether the executing Court was precluded by the said Regulation from selling the land and transferring it to, an auction-purchaser. It may be observed that the mortgagors did not raise the question of the saleability of the mortgaged property before the Court which had passed the mortgage decree, nor did they attack the validity of the mortgage itself, nor did they raise the question that it was not competent for the Court itself to pass a decree for sale. It was, therefore, argued, on behalf of the decree-holders that the judgment-debtors were stopped from raising that point before the executing Court, and that the matter must be treated as res judicata. There again it was not seriously questioned that the property came within the mischief of section 27 of the Santal Parganas Settlement Regulation. Their Lordships observed that the words of sub-section (2) of section 27 are absolutely prohibitive and whether or not another Court has pronounced the decree and said that the property in question can be sold, the executing Court is prevented from implementing such a decree and from granting a certificate of sale or delivering possession under such a sale. As to the matter of estoppel and res judicata their Lordship agreed with the decision in Rup Nath's case. These cases, therefore, do not assist the appellant inasmuch as where the property is admittedly non-saleable, the executing Courts cannot sell the property, and the failure to raise the objection in time does not create any estoppel and res judicata because there is no estoppel against the statute. Where, however, the facts themselves have to be determined which may lead to the inference that the property is not saleable, those facts must be pleaded and proved like any other question for determination by the Court itself; and if those questions are not raised at a proper stage, the bar of res judicata, must be applicable. I have already in this connection referred to a passage from the Full Bench decision of the Lahore High Court in I.L.R 1942 Lahore 559.

I may usefully refer to another Special Bench decision of this Court in Dhannu Pathak v. Sona Koeri. In that case it was contended that a certain lease was void as being the lease of raiyati interest within the meaning of section 46 of the Chota Nagpur Tenancy Act, and that there could not be estoppel against the statute. The defendants, however, in that case denied that the plaintiffs we re raiyats, and that the plaintiffs had represented themselves as tenure-holders. If the position were admitted that it was the lease of a raiyati holding, there can be no doubt that section 46 of the Chota Nagpur Tenancy Act would operate thereon. But there was a denial of this raiyati interest, and their Lordships observed: “This raises an issue of fact and it is not until that issue of fact is concluded in favour of the plaintiffs that any question of the operation of the statute can arise………. The first issue, therefore, is as to whether the plaintiffs are or are not tenure-holders, and it is at this stage that the doctrine of estoppel operates. The plaintiffs having represented themselves as tenure-holders cannot be permitted to enter into a discussion of this question of fact but must be held bound by their own representation. No question, therefore, of the operation of the statute can arise. The plaintiffs are prevented from proving a fact which is inadmissible before the matter of the statute can be considered”. In my opinion, these observations very clearly apply to the present case, and whether it is estoppel by conduct or estoppel by record, that is, constructive res judicata, in my opinion, the judgment-debtor is now debarred from raising the question of fact, namely, whether the property sought to be sold is a Government ghatwali, and, as such, inalienable.

I may also refer to a decision of the Privy Council in Sadasiva Pillai v. Ramalinga Pillai wherein the Judicial Committee has in emphatic terms condemned the attitude of parties in lying by and raising a plea in bar not until at a very late stage of the proceedings. In that case the proceedings began in 1864 and for several years were carried on without objection. In 1875 they were sought to be declared infructuous on the ground of irregularities. The High Court appears to have given, effect to this contention but the Judicial Committee reversed the order of the High Court with these poignant remarks: “Their Lordships would have felt great regret in coming to the contrary conclusion. That proceedings begun in 1864, and for several years carried on without objection, should in 1875 be pronounced infructuous on the ground of irregularity, and the party relegated to a fresh suit in order to assert an indisputable right, would be a result discreditable to the administration of justice. In such a suit the plaintiff would probably find himself, either successfully or unsuccessfully, opposed by a plea of limitation. If such a plea were successful, great injustice would be done to the plaintiff; if it were unsuccessful, the respondent would probably find himself in a worse position than that in which he will be placed by the allowance of this appeal…….” Their Lordships held that upon the ordinary principles of estoppel the respondents could not be heard to say that mesne profits were not payable under the decree.

In this case the decree under execution was passed 18 years ago in 1932. The execution itself was started in 1935, and it is now about 15 years old. The fate of the decree-holder hangs precariously upon the issue of this execution case. The order sheet of the execution case tells its own tale, and I entirely agree with the learned Subordinate Judge in his view that the judgment-debtor appeared at, various stages of the execution case, he obtained time on various pretexts and got adjournments of the sale from day to day undertaking not to raise any objection on the ground of irregularity in the sale proclamation and yet he never before raised the plea that the property was non-saleable. It would he unnecessary for me to go to the earlier stages of the execution case but I will refer only to a few of the orders which relate just previous to the stage when this application came to be filed by the judgment-debtor. On the 29th May, 1947 the Court ordered issue of sale proclamation fixing the 15th August, 1947, for sale, 15th and 20th, being holidays the case came up on the 21st. It was found that the sale proclamation had been duly published, and the judgment-debtor filed a petition praying for adjourning the sale on certain grounds, and the Court adjourned it to the 28th August, 1947, as prayed for. It appears again that, the sale continued to be adjourned until we come to the order, dated the 8th December, 1947. On that date the judgment-debtor took no steps whatsoever, and the decree-holder applied for a fresh sale proclamation. The sale proclamation was issued fixing the 17th February, 1948, for sale. We find then that on the 3rd of February, 1948, the present objection was filed. When this objection was taken up on the 14th February, 1948, the decree-holder was ready but the judgment-debtor applied for a month's time, and on his waiving the right to issue of fresh sale proclamation, the Court directed the sale to take place on the 6th February, 1948. Again it appears that on the 21st February, 1948, the decree-holder was ready but the judgment-debtor applied for time, and when the matter was again put up on the 6th March, 1948, the judgment-debtor applied for adjournment of the sale on waiving the right to fresh sale proclamation. The order sheet both prior to the filing of this objection as also subsequent thereto shows that the judgment-debtor was never serious in pressing this objection and was only trying to kill time. In my opinion, the learned Subordinate Judge was perfectly justified, in holding that at various stages even after due notice the judgment-debtor did not raise any objection on the ground, of non-saleability but he allowed the execution to proceed; and in fact though he raised other objections in regard to the value of the property, etc. and even on several occasions brought the matter to this Court, he did not raise this objection until at this very late stage when, all his other objections had failed. Mr. Ghosh submits that prior to 1943 his client had no knowledge that his estate was a Government ghatwali but the ordersheet shows that, even thereafter during the last five years that the execution remained pending it never dawned on the appellant to raise the objection at any earlier stage. I have already said that it is not open to a judgment-debtor to raise his objections piecemeal and especially where it relates to a plea in bar to the execution case itself.

I am, therefore, of the opinion that the judgment-debtor cannot be allowed to raise this objection now, and it will be deemed that the question of fact whether the properties in question are Government ghatwali and, as such, non-saleable has been by implication decided against him.

For the reasons stated above, I would affirm the decision of the learned Subordinate Judge on the point, and dismiss this appeal with costs. Hearing fee to be calculated at the maximum rate.

Ramaswami, J.:— I agree.

G.N.P

Appeal dismissed.