This is an appeal by the J. D. against the order dated 27-5-58 of the Dis­trict Judge, in Civil Misc. Appeal No. 26 of 1956, affirming the order of the Munsiff, Khowai dismiss­ing the application of the J. D. under sections 47 and 151 of the C. P. C. (2) The material facts leading up to this appeal are briefly these: The applicant J. D. took a loan of Rs. 400/- from the predecessor of the present respondents after executing a simple mortgage bond. As the mort­gage debt was not paid, the respondents brought the Suit No. n of 1953 for sale. The suit was decreed on contest with costs on 11-5-54 and the mortgagor was allowed 3 months' time to repay the mortgage debt, failing which the mortgage proper­ties or so much thereof as were sufficient to meet the mortgage dues were directed to be sold. As the mortgage dues were not paid within the period of grace, the respondents applied for sale of the mortgage properties by starting Execution Case No. 46 of 1954 on 20.12.1954. The respondents without applying for final decree under sub-rule (3) of Order 34, Rule 5 of Civil Procedure Code, straightaway made an application for sale. That, application was entertained by the executing Court and the entire mortgage properties covering the area of 4 1/2 drones were auctioned, and purchas­ed by the decree-holders for a sum of Rs. 928/5/6 on 23-12-1955. On 24.1.56, the mort­gagor presented an application for setting aside the sale upon deposit of the mortgage dues, and he-deposited by challan Rs. 995/1/6 the entire decre­tal dues together with a sum equal to 5 per cent of the amount of the purchase money as required under sub-rule (2) of O. 34, R. 5. The learned Munsiff did not accept the deposit on the contention that the amount was not deposited within 30 days as required under Article 166 of the Indian Limitation Act, and he confirmed the sale on that date. After that the respondents (decree-holders) took delivery of possession of the lands through the Court. Thereafter, the appellant-judgment-debtor oft 13-2-56 presented an application under sections 151 and 152 read with section 47 of C. P. C. stating that no preliminary decree had been drawn up as. After that the respondents (decree-holders) took delivery of possession of the lands through the Court. Thereafter, the appellant-judgment-debtor oft 13-2-56 presented an application under sections 151 and 152 read with section 47 of C. P. C. stating that no preliminary decree had been drawn up as. , yet though it was clear from the judgment delivered on 11-5-54 that the decree passed was in the form of a preliminary decree, so the omission fen the judgment be corrected. It was further urged that it was the duty of the decree-holders to apply for the final decree under the provisions of sub-rule 3 of Order 34 Rule 5, but no such application-was made with the result that the sale held in pursuance of the original preliminary decree could not be said to be valid or binding. It was also-averred that the deposit made by the judgment-debtor on 24-1-56 should have been accepted as it was made before the confirmation of the sale. The application was opposed by the respondents (decree-holders). The learned Munsiff after hear­ing the Advocates from both sides, held that it was clear from the language of the judgment dated1 n-5-54 that a preliminary decree had in fact been passed and that there was no occasion for the correction of the decree. He also observed that there was no final decree in this case, as there was no application for it. He treated the application for sale as an application for final decree. He fur­ther observed that the decretal amount deposited-by the judgment-debtor on 24.1.56 before the con­firmation of the sale should have been accepted by his predecessor-in-office, but now at this stage-no relief could be given to the judgment-debtor in his application under section 151 of C. P. C. But it is open to the judgment-debtor to institute a suit for setting aside the sale. He also held that the judgment-debtor had the knowledge of the proceedings, so he should have raised objection in the execution proceedings under section 47 of C. P. C., and that his conduct showed that the objections raised by him had been previously waiv­ed and therefore this application is not maintaina­ble. (3) Being aggrieved by the order of the learn­ed Munsiff, the judgment-debtor preferred an appeal to the Court of District Judge, Tripura. The seamed District Judge, dismissed the appeal, so he has come in appeal to this Court. (3) Being aggrieved by the order of the learn­ed Munsiff, the judgment-debtor preferred an appeal to the Court of District Judge, Tripura. The seamed District Judge, dismissed the appeal, so he has come in appeal to this Court. (4) The counsel for the appellant contended that under Order, 34, Rule 5, as it stands since the amendment from the 1st of April, 1930, the right of redemption remains intact till the date of confirmation of the sale. In the instant case the sale was held on 23-12-55 and 24-1-56 was fixed for its confirmation. Before the sale was confirmed the appellant deposited a sum of Rs. 995/1/6 in­cluding 5 per cent, of the purchase money for payment to the purchaser by way of compensation. The moment the decretal amount was paid the sale became ineffective. Therefore the confirmation of the sale in the face of the deposit of the decretal amount was quite illegal. The learned Munsiff instead of confirming the sale should have passed the order under sub-cls, (a, b, c) and also under 2nd paragraph of sub-rule 2 of Order 34, Rule 5. As the order of confirming the sale was bad in. law, so the learned Munsiff should have quashed the entire execution proceedings with an order of immediate restitution. (5) In order to controvert this argument, the teamed counsel for the respondents urged that the present remedy was barred as the judgment-debtor-" appellant did not prefer an appeal against the order of the learned Munsiff confirming the sale in the face of the deposit. The counsel for the appellant in reply contended that the application was not given under Order 21 Rule 89, but it was made under Order 34 Rule 5, and for that there is no provision for an appeal. This argument is without substance. From the record it appears that the application .given by the appellant was under Order 21, R. 89. The trial Court also treated it under Order 21 "Rule 89. If it had been under Order 34 Rule 5, there would have been no question of limitation of 30 days. In this case, the sale was confirmed under Order 2r Rule 92, therefore, when the learn­ed Munsiff rejected the application in that casa he should have preferred an appeal under Order 43 Rule J, sub-clause 3. The appellant, therefore, had the remedy, but he did not avail it. In this case, the sale was confirmed under Order 2r Rule 92, therefore, when the learn­ed Munsiff rejected the application in that casa he should have preferred an appeal under Order 43 Rule J, sub-clause 3. The appellant, therefore, had the remedy, but he did not avail it. If for , the sake of argument it be presumed that the application was given under Order 34, Rule 5, in that j case too an appeal lies. There is a provision for 1 appeal under the statute against an order made under Rule 2, R. 4 or R. 7 of Order 34. The ques­tion whether an appeal lies against Order 34, Sule 5, came for decision before the Hon'ble Judges of Lahore High Court in the case Suraj Bhan v. Allahabad Bank, Delhi, AIR 1936 Lah 562. That was a case of a mortgage sale which took place on the i6th of April, 1930 and the question arose whether the amending Act 21 of 1929 by which the provisions of Order 34, Rule 5, C. P. C. were amended, could be attracted to the facts of that case. The said amendment Act 21 of 1929 came into force on the 1st of April, 1930, whereas the sale took place on the i6th of April, 1930. It was accordingly held that the provision of Order 34 Rule 5 as amended by which the right of redemption remained intact till the date of confir­mation of sale could be invoked in that case. In that case the executing Court dismissed the appli­cation under Order 34, Rule 5, C. P. C. preferred by the judgment-debtor against which an appeal was taken. It was in that connection that their Lordships held that the decision of an executing Court on an application under Order 34, Rule 5 falls within the purview of section 47, C. P. C. and is appealable. (6) The other case on this point is a case from Madras, reported in Nanjappa Goundan v. Sree-ranga Chettiar, AIR 1945 Mad 422 . In that case there was an agreement under the Madras Debt Conciliation Act in the case of a mortgage debt providing that if default is made in the payment of amount found due within a certain time; the pro­perty shall be sold. In that case there was an agreement under the Madras Debt Conciliation Act in the case of a mortgage debt providing that if default is made in the payment of amount found due within a certain time; the pro­perty shall be sold. It was held in that case that such an agreement constituted a final decree and there­fore the provisions of Order 34, Rule 5 were appli­cable. In that case the judgment-debtor failed to pay what was due and consequently the mortgagee instituted execution proceedings in the Court of the District Munsiff, Coimbatore. As a result the property was put for sale and purchased by the mortgagee. The judgment-debtor made an appli­cation under Order 21 Rule 90 for setting aside the sale, and also made deposit of the mortgage dues. Before the sale was confirmed he prayed that the deposit should be treated as one under Order 34, Rule 5. The trial Court held that the provisions under Order 34 Rule 5 did not apply and his views were accepted by the lower appellate Court. The matter was taken to the High Court where their Lordships held that the provisions of Order 34, Rule 5, could be attracted. No contrary decision on this point was cited from the opposite side. In view of these rulings, it is clear that I an order made under Order 34, Rule 5 by itself is not appealable as would appear from the provisions | of Order 43, Rule 1, but the decision of an executing Court on an application under Order 34, Rule 5, falls within the purview of section 47 C. P. C. and it is as such appealable. (7) It was next contended on behalf of the appellant that the question of preferring any objection under section 47 C. P. C. did not arise in the present case as the sale held was quite contrary to law. He also pointed out that the decree must be executable in order to give jurisdic­tion to the Court to entertain it. In this case no final decree had been passed and the preliminary decree passed on 11-5-54, was not naturally capa­ble of execution, and that the sale held in such circumstances was null and void. He also pointed out that the decree must be executable in order to give jurisdic­tion to the Court to entertain it. In this case no final decree had been passed and the preliminary decree passed on 11-5-54, was not naturally capa­ble of execution, and that the sale held in such circumstances was null and void. In this connec­tion a ruling of Calcutta High Court reported in Jivandas Khimji v. Dindoyal Shah, 50 Cal W N 486, was cited by the counsel for the appellant, where it was held that a preliminary decree in a mortgage suit is not a decree for payment of money and such a decree in default of payment by the judgment-debtor as directed thereunder could not be executed by attachment and sale of the proper­ties of the judgment-debtor, and that the proper remedy of the decree-holder was to apply for a final decree. A decision of the Allahabad High Court, reported in Mahomed Unis v. Janeshar Das, AIR 1929 All 881, was also 'cited in this connection. There, it appears that a preliminary decree under Order 34, Rule 4 was passed on compromise. That compromise decree provided for the payment of mortgage money in instalment. Without making decree final it was put to execution. This was found to be fatal. Their Lordships held that the decree-holders were obliged in the first instance to apply for final decree. There is therefore, no denying that until the final decree is passed the proceedings following the preliminary decree in a mortgage suit must be looked on as a proceeding in a pending suit itself. (8) It was next urged that assuming for the sake of argument that the Court had jurisdiction to entertain the execution petition then even as soon as the payment was made by challan in the Court and the moment the decree was satisfied, the Court had no jurisdiction to confirm the sale. (9) It was further averred that in this case the appellant had no knowledge of the non-existence of the final decree, and no order was passed in respect of the objections raised by him in Execution Case No. 46 of 1954, therefore it cannot be said that this point was finally heard and decided in the previous Execution Case. (9) It was further averred that in this case the appellant had no knowledge of the non-existence of the final decree, and no order was passed in respect of the objections raised by him in Execution Case No. 46 of 1954, therefore it cannot be said that this point was finally heard and decided in the previous Execution Case. In the presence of these facts, the lower Court was not justified in holding that the instant case was barred by the principles of constructive res-judicata. In support of his argument, he cited the case P. Sundavesan v. P. Venkatesiah, AIR 1949 Mad 196, wherein it was observed by his Lord­ship Horwill, J. that ordinarily, an earlier order in the same execution proceedings, would operate as constructive res-judicata with regard to the same matters raised at subsequent stages of the execu­tion application; but where an order is passed by a Court without jurisdiction that would not necessi­tate the Court again acting without jurisdiction. In other words, an order passed without jurisdic­tion in an earlier proceedings or at an earlier stage in the same proceeding would not operate as res-judicata in a subsequent proceeding or at later stage of the same proceedings. (10) It is an admitted fact that there was no application for making the decree final within the meaning of sub-rule (3) of Order 34, Rule 3. But it 'appears at the same time that the application for execution was entertained and the mortgage properties were sold. There is no denying of gross irregularity in the matter. But the learned counsel for the respondents vehemently contended that it was open to the appellant-judgment-debtor to raise this objection in the Execution Case No. 46 of 1954 itself, and not having done so the plea could not be raised at this stage by reason of the appli­cation of the principles of constructive res judicata. He also pointed out that the judgment-debtor had knowledge of the execution proceedings as he con­tested it, so he is now estopped from raising such plea again. In support of his argument, he relied upon the case Venkappa v. Laxmikant Rao, (S) AIR 1956 Hyd 7. It is a Full Bench decision. He also pointed out that the judgment-debtor had knowledge of the execution proceedings as he con­tested it, so he is now estopped from raising such plea again. In support of his argument, he relied upon the case Venkappa v. Laxmikant Rao, (S) AIR 1956 Hyd 7. It is a Full Bench decision. It was held therein in conformity with the ruling in Raja of Namnad v. Velusami Tewar, AIR 1921 PC 23 and Venkatalingama v. Dhanaraj Girji, AIR 1929 Mad 826 , as follows: "Although the principle of res-judicata as such may not apply to execution proceedings, an objec­tion which could have been raised by the judgment-debtors at the time of filing the execution appli­cation not having been raised, that plea could not be raised by reason of the application of the principles of constructive res-judicata. Thus, where after the service of notice of an application for execu­tion by the decree-holder, the judgment-debtors do not raise the plea of limitation stating that the application is a fresh one presented after the expiry of 12 years from the date of the decree, they cannot be allowed to raise the same at a subsequent stage" This view taken by the erstwhile Hyderabad High Court has been referred to with approval in the Full Bench decision of the Andhra Pradesh High Court in Venkatarama Reddy v. K. Buchanna, AIR 1963 Andh Pra i at p. 5. In this case the learned Chief Justice observed: "The principles of 'res-judicata' come into play even in regard to different stages of the same-execution petition. When once an order is made for the execution of the decree and that has be­come final, in the same execution petition he (judg­ment-debtor) cannot impeach that order". (11) The second case on which the learned counsel for the respondents relied upon is the case reported in Banu Mai v. Paras Ram, AIR 1925 Lab> 640. There the nature of the decree was also in. question. It was doubtful whether the decree, which was put to execution, was a mere preliminary decree under Order 34, Rule 4, or whether it was simple decree for money where certain properties were also hypothecated. The decree in that case was found to be beyond the scope of Order 34, Rule 4. question. It was doubtful whether the decree, which was put to execution, was a mere preliminary decree under Order 34, Rule 4, or whether it was simple decree for money where certain properties were also hypothecated. The decree in that case was found to be beyond the scope of Order 34, Rule 4. But it was also held that even assum­ing that the decree in question was covered by Order 34, Rule 4, the judgment-debtor was pre­cluded from taking the objection that it was not capable of execution because he did not take that objection on the previous application for execution. It appears that the decree in that case was passed1 on the 19th of May, 1916 and execution proceeding went on from 1917 to 1920, various objections were raised, but the objection to the effect that the-decree was not executable as no final decree had' been passed was taken for the first time on the 16th February 1920. Question, accordingly, arose whether the judgment-debtor was competent to raise the objection at that stage. The question as-indicated above was answered in the negative. (12) Now in the light of the arguments dis­cussed at the Bar and the rulings cited it has to be seen from the record whether the appellant-judgment-debtor had the knowledge of the execu­tion proceedings. This execution case was institut­ed on 22-12-1954, and the present respondents applied for sale of the entire mortgage properties covering an area of 41/2 drones. It appears that the appellant appeared and filed a petition on 26-3-55, stating that in view of the prevailing price of the lands it was not necessary to put up the entire mortgage properties to sale, and that the mortgage dues could be satisfied by sate only of 4 kanis out of the entire mortgaged properties. It does not appear that any notice or any order was passed upon this objection. It further appears on the examination of the record that on 27-5-55 the judgment-debtor was present in Court. His Hajira was filed which contained an endorsement to the effect that he had no objection to the sale of the mortgage properties. His Hajira has been exhibited in this case. All these facts, however, show that the appellant (judgment-debtor) had the notice of the execution case. His Hajira was filed which contained an endorsement to the effect that he had no objection to the sale of the mortgage properties. His Hajira has been exhibited in this case. All these facts, however, show that the appellant (judgment-debtor) had the notice of the execution case. He also appeared and took active part in the same, but he did not raise any such plea as should have been done to the effect that the decree was incapable of execution. (r3) Now the question that arises fir deter­mination is whether the appellant-judgment-debtor is precluded by the rule of res-judicata from raising the plea that the Court has no jurisdiction to entertain the Execution Petition, he having failed to take this plea in the Execution Petition No. 46 of 1954. (14) Here I am proceeding on the premises that the objection, if taken at an earlier stage of the execution proceedings, would have effectively thrown out the execution proceedings. (15) There can be no controversy that the rule of constructive res-judicata applies to execu­tion proceedings, that is to say, that the objections which might and ought to have been taken must be deemed to have been decided against the party. It is also a settled proposition that even an erron­eous decision on a question of law operates as res-judicata between the parties to it, and that the correctness or otherwise of a judicial decision has no bearing on the question whether or not it operates as res-judicata. i.e., the rule operates even if there has been an erroneous order at a prior stage of the execution proceedings. These propositions, which are indisputable and settled are restated and affirmed by the Supreme Court in Mohanlal Goenka v. Benoy Krishna Mukherjee, 1953 SCR 377 : AIR 1953 SC 65 . A further indisputable proposition is that the rule of res-judicata applies not only to successive execution petitions as such but also at successive stages of. the same execution petition. In the instant case, the question arises if the judg­ment-debtor is barred by the rule of constructive res-judicata from raising the plea that the Court has no jurisdiction, he having failed to raise this plea in the previous execution petition. There ap­pears to be consistent authority that the judgment-debtor is so precluded. (16) The important case on this point is Venkatranga Reddi v. Chinna Sithamma, AIR 1941 Mad 440 . There ap­pears to be consistent authority that the judgment-debtor is so precluded. (16) The important case on this point is Venkatranga Reddi v. Chinna Sithamma, AIR 1941 Mad 440 . It was a case of an execution being levied for money. E.P. 5 of 1930 was indis­putably barred by time, but though notice to show cause why the decree should not be executed was duly served on the judgment-debtor, he did not oppose and object to the application, and the Court ordered the issue of a warrant for his arrest. The decree-holder did not prosecute the petition fur­ther and it was dismissed on 10th March, 1930. A subsequent application was put in .1933 within three years of the previous one, which also was dismissed for non-prosecution. The next E.P. was filed on 7-10-1936 being Ext. P.86 of 1936. The judgment-debtor raised the plea of limitation based upon the execution petition No. 5 of 1930 having itself been filed beyond time. The decree-holders tried to repel the plea saying that arrest had been ordered on that petition and the judgment-debtor was, therefore, precluded by the principle of res-judicata from raising the plea. Patanjali Sastri, J. who delivered the judgment of the Court discussed the application of the principle of res-judicata at great length. The learned Judge expressed that an order for execution, made after notice to the judgment-debtor who did not appear and offer any objection, precluded him from raising a plea of limitation in subsequent proceedings, even though the application on which the order was passed did not fructify and was eventually struck off or dis­missed. So the plea of bar by the rule of res-judicata could be successfully invoked by the decree-holder. It may also be noticed that the learned Judge expressly dissented from the view expressed in Genda Lai v. Hazari Lai, AIR 1936 All 21 (FB) thus: "Where no objection is taken, but the applica­tion for execution does not fructify, the judgment-debtor is not debarred by the principle of 'res-judicata' from raising the question of limitation later". This view has been consistently stuck to in the later decisions of Madras High Court. In S. S. Puttappaji v. Mallappa, AIR 1944 Mad 420 Horwill J., followed this view. It was a case where an execution petition was filed out of time. This view has been consistently stuck to in the later decisions of Madras High Court. In S. S. Puttappaji v. Mallappa, AIR 1944 Mad 420 Horwill J., followed this view. It was a case where an execution petition was filed out of time. Notice went to the judgment-debtors but they did not appear, and an order was passed for sale of pro­perties. At a later stage an objection of limitation was taken. The objection was found to be unten­able. The learned Judge expressed thus: "If an order to execute is passed in an execu­tion petition, then by implication the Court has decided: (1 that the petitioner has a right to execute; (2) that the judgment-debtor is liable to satisfy the decree; (3) that the decree is executable; and (4) that it is not barred by limitation." (17) The result is that at no subsequent stage after an order to execute has been passed it is open to the judgment-debtor to dispute the correct­ness of these four implied decisions. The learned Judge referred to AIR 1941 Mad 440 as being in conformity with the view that he expressed. Referr­ing to Section 3 of the Limitation Act the learned Judge stated that "the weak point of the argument based on S. 3 was that when the Court ordered the pro­perty to be sold, it decided rightly or wrongly that the application was not barred by limitation, and so had no power to pass any subsequent orders inconsistent with its earlier decision, and that when the Court passed an order adverse to the respon­dent that the property should be sold, he had a right of appeal under S. 47; and as he did not exercise that right he is barred from disputing the correctness of the order at a subsequent stage." (18) The other case on this point is AIR 1921 PC 23. In this case the assignee of a partially executed decree applied to the Subordinate Judge to be brought on record in place of the decree-holder. The judgment-debtors denied the assignment and the liability of certain properties to attachment. They alleged that the right to execute the decree was barred by limitation. The Subordinate Judge recognised the assignment, allowed the assignee to execute, the decree and gave him permission to file fresh application for attachment. The order was not appealed against. The judgment-debtors denied the assignment and the liability of certain properties to attachment. They alleged that the right to execute the decree was barred by limitation. The Subordinate Judge recognised the assignment, allowed the assignee to execute, the decree and gave him permission to file fresh application for attachment. The order was not appealed against. In the final proceedings, the Subordinate Judge permitted the judgment-debtor to raise again the plea of limitation. In the course of the judgment, Lord Moulton observed as follows: "Their Lordships are of opinion that it was not open to the learned Judge to admit this plea. The order of the I3th December, 1915, is a positive order that the present appellant should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to, the respondents' case, have been a complete answer, and, therefore, it must be taken that a decision was given against the respondents on the plea. No appeal was brought against that order, and, there­fore, it stands as binding between the parties. Their Lordships are of opinion that it is not neces­sary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the plea for­ward on that occasion, but it was incumbent on them to do so if they proposed to rely on it, and moreover it was in fact brought forward and decided upon". This case was expressly referred to by the Supreme Court in AIR 1953 SC 65 . (19) I may also refer to the case Satappa Shidappa Shintre v. Hirachand Atmaram Shah, AIR 1961 Mys 54. In this case also His Lordship held "where, when the executing Court in execut­ing the decree ordered the properties to be sold, no objections were raised to the jurisdiction of die Court to execute the decree, the judgment-debtors would be barred by the application of the principles of constructive res-judicata from raising any objection as to the jurisdiction of the Court at a subsequent stage". (20) In view of the consensus of authority I have no other alternative but to uphold the decision of the District Judge. In the instant case as discussed above it is clear that the appellant had not only the notice of the execution case, but he appeared and took active part in it. (20) In view of the consensus of authority I have no other alternative but to uphold the decision of the District Judge. In the instant case as discussed above it is clear that the appellant had not only the notice of the execution case, but he appeared and took active part in it. But even then he did not raise the plea that the Court had no jurisdiction to entertain it as the decree was incapable of execution. (21) In the face of these facts and the princi­ples discussed above, I find that the plea of the appellant is barred by the principles of constructive res-judicata and he cannot get any relief, (22) The result is, the appeal is dismissed with costs. Appeal dismissed.