Judgment :- 1. A court sale of immovable properties in execution of a money decree against the deceased first respondent (the first defendant) was sought to be set aside under O. XXI, R.90 of the Code of Civil Procedure on the ground of fraud and material irregularity in proclaiming and conducting the sale. The appellants (husband and wife) are the decree-holder and the auction-purchaser respectively; and they opposed the application. The executing court upheld the objection and dismissed the application holding that there was no fraud nor material irregularity in publishing and conducting the sale. On appeal the lower appellate court confirmed the finding that there was no fraud; but, it disagreed on the other ground and held that there was material irregularity. Consequently, the lower appellate court reversed the decision of the primary court and set aside the sale. 2. The appellants filed an execution petition stating that the judgment-debtors were not agriculturists entitled to benefits of Act XXXI of 1958. The execution court returned the petition for clarifying how the judgment-debtors were not agriculturists; and the kariastha (the agent) of the decree-holder filed an affidavit stating that the estate of the judgment-debtors was paying more than Rs. 150 as basic tax, so that the estate was not an agriculturist. Notice of the execution petition was given to the respondents; but, they did not appear. Execution proceeded; and the properties were sold and purchased by the second appellant. Before confirmation of sale the application, which has given rise to the second appeal, was filed for setting aside the sale alleging that there was fraud and material irregularity in proclaiming and conducting the sale. The fraud alleged was that the statement in the affidavit of the kariastha of the decree-holder that the estate of the respondents was paying more than Rs. 150 as basic tax was, to the knowledge of the kariastha himself, incorrect and false. The material irregularity alleged was that since the estate of the respondents was an agriculturist, the first appellant was not entitled to execute the decree for the whole decree amount, but was entitled to execute the same only for the defaulted instalments under Act XXXI of 1958; in other words, the execution of the entire decree was a material irregularity. 3. 3. As already stated, the Munsiff has held that the statement in the affidavit regarding the basic tax payable by the estate of the respondents was not fraudulent. The District Judge also has said at the close of Para.5 of his judgment that "it is not possible to say that the decree-holder practised fraud on the court, for the contention that an honest mistake was made cannot be ruled out". Therefore, the only question for consideration in the second appeal is whether the District Judge is right in his view that there was material irregularity coming within O. XI, R.90 of the Code of Civil Procedure. 4. Sri V. Balakrishna Eradi, the counsel of the appellants, brings to my notice the decision of the Supreme Court in Kanhaiyalal v. Dr. D. R. Banaji AIR, 358 SC. 725 in particular, portions of Para.10 of the judgment. In that case the Original Side of the Bombay High Court appointed a receiver for some properties, which were brought to sale by the State for arrears of revenue under the Berar Land Revenue Code. In those proceedings no notice was given to the receiver; and the receiver, after the sale was confirmed, applied to the State without success to have the sale set aside. He then filed a suit which was decreed; and the auction-purchaser took up the matter to the Supreme Court. Their Lordships of the Supreme Court, in considering S.156 of the Berar Land Revenue Code, which contained the expression 'material irregularity or mistake in publishing or conducting' the sale, observed that the failure to issue notice to the receiver was not an irregularity in publishing or conducting the sale. (They held that the sale as void.) They said: "' Publishing' the sale has reference to that part of the proceedings which relate to the sale proclamation, and 'conducting' the sale has reference to acts or omissions, at a still later stage, of some officer or public authority who is entrusted with holding the sale." I am not sure that this decision can be pressed into service in a case like the one before me because what happened in this case was that instead of mentioning in the sale proclamation the defaulted instalments alone as the decree to be realised, the entire decree was shown: and it cannot be said that this was not an irregularity in proclaiming the sale. In the case before the Supreme Court the sale was held to be void as no notice was given to the receiver: and that mistake was evidently not the publication or the conduct of the sale. The question in this case, therefore, whether such an irregularity is a material irregularity sufficient to call fora setting aside of the sale. Even if it is so, the question still remains whether the decision of the District Judge can be sustained. 5. As already stated in the second paragraph of this judgment, the execution petition contained an averment that the judgment-debtors were not agriculturists and were not entitled to benefits of Act XXXI of 1958. A copy of that petition was also served on the judgment-debtors; but, they did not appear in court and claim benefits as agriculturists. Execution proceeded; and at every stage here notices to the judgment-debtors were required, notices were issued. In spite of that, they did not appear at any stage until the sale took place. The question is whether, in these circumstances, the principle of constructive res judicata ill apply. 6. Sri V. Balakrishna Eradi cites another decision of the Bombay High Court, in Shankar Ramakrishna Dandekar v. Daga Tanaji Mali AIR, 1949 Bombay 79 by Chagla, Ag. C. J. In that case a notice under O. XXI, R.66 of the ode of Civil Procedure was issued to the judgment-debtor, but he failed to appear. The court then settled the sale proclamation and posted the sale to a particular date. On that day the judgment-debtor appeared and claimed relief under the Dekkhan Agriculturists Relief Act; and Chagla, Ag. C. J. has observed that the judgment-debtor was precluded from claiming relief by the principle of constructive res judicata. The learned Acting Chief Justice has observed that in a case where a judgment-debtor, who has had the opportunity of putting forward the contention that he was an agriculturist at an earlier stage of the execution proceedings fails to do so and stands by, cannot be allowed, at a later" stage of the same proceedings, to raise that contention. Another, decision of the Bombay High Court in Narayan v. Dhondo AIR. 1926 Bombay 246 appears to have been brought to the notice of Chagla, Ag. Another, decision of the Bombay High Court in Narayan v. Dhondo AIR. 1926 Bombay 246 appears to have been brought to the notice of Chagla, Ag. C. J. In that case there were several execution petitions and in the earlier petitions the judgment-debtor did not claim relief as an agriculturist, but claimed such relief in a later execution petition. The High Court held that the judgment-debtor was not precluded from claiming such relief. Chagla, Ag. C. J. makes a distinction between a judgment-debtor claiming relief as agriculturist in a later execution proceeding having failed to Claim it in earlier execution proceedings, and a judgment-debtor claiming such relief at a later stage of the same execution proceeding having failed to claim it at an earlier staged With due respect to Chagla, Ag. C. J., I. am not sure of the distinction. At any rate, in this case I need not go to the extent to which Chagla, Ag. C. J. has gone, 7. The execution petition in this case contained an averment that the judgment-debtors were not agriculturists and were not entitled to benefits of Act XXXI of 1958, a copy of which was admittedly served on the judgment-debtors. Nevertheless, they failed to appear and claim relief as agriculturists. I am aware of the healthy and salutory principle that constructive res judicata should be applied with great caution: but, if the judgment-debtors had notice of the averment of the decree-holder that they were not agriculturists and were not entitled to benefits of Act XXXI of 1958 and if they did not appear and if the court settled the sale proclamation as if the judgment-debtors were not agriculturists, I fail to see how constructive res judicata does not apply. The principle of res judicata is enunciated in S.11 of the Code of Civil Procedure; and one of the corollaries is that every objection which ought to have been raised or might have been raised in the earlier proceeding must be deemed to have raised and decided against the person who failed to raise it in the earlier proceeding. It may not probably be safe to go to that extent in applying the principle of constructive res judicata: and I am afraid that Chagla, Ag. C. J. has gone to that extreme limit in the Bombay decision already referred to. It may not probably be safe to go to that extent in applying the principle of constructive res judicata: and I am afraid that Chagla, Ag. C. J. has gone to that extreme limit in the Bombay decision already referred to. But, in a case like the one before me, where the judgment-debtors had notice of the case of the decree-holder that they were not agriculturists, it cannot be said that the principle of constructive resjudicata will not apply. The reason given by the District Judge that a copy of the affidavit of the kariastha of the decree-holder mentioning the basic tax payable by the judgment-debtors was not sent to them appears to be quite lame and unconvincing. Therefore, his view that constructive res judicata does not apply is patently erroneous. The decision of the lower appellate court is set aside; and the decision of the first court is restored. Since the respondents have not appeared before me I direct both parties to bear their respective costs throughout. Allowed.