KEVALDAS KALABHAI v. CHAMPAKLAL CHIMANLAL SODAGAR — 1972 DIGILAW 36 (GUJ)

T. U. MEHTA, J. ( 1 ) THIS Appeal arises out of the order passed by the 8 Judge of the City Civil Court Ahmedabad dismissing the execution application No. 237/64 filed by the appellant who is the decree-holder. The execution in question is of a decree passed by the High Court of Bombay on its Original Side for the sum of Rs. 19 770 with interest and costs in Civil Suit No. 674/47 which was for the amount of Rs. 13 210 The said decree is passed on 16th March 1951 The same was transferred by the High Court of Bombay to City Civil Court Ahmedabad for execution and pursuant to that order of transfer the appellant-decree holder has filed this execution application in the City Civil Court Ahmedabad on 28 April 1964 The total amount for the realisation of which the execution is filed comes to Rs. 30 270 nps. During the course of the execution the decree holder has taken into attachment the judgment debtors immoveable property situated at Kalupur in the city of Ahmedabad. ( 2 ) TO this execution application judgment-debtors who are respondants in this appeal have taken various objections. Their main contention is that the High Court of Bombay had no jurisdiction to pass any decree against them on 16th March 1951 in view of the fact that on that date the jurisdiction over the subject-matter of the suit was with the City Civil Court Bombay. Another contention which was raised by the respondents before the executing court was that even if it is believed that the High Court of Bombay had jurisdiction to pass the decree sought to be executed it had no jurisdiction to entertain any execution application in view of the specific provisions made in sec. 12 read with sec. 3 and 4 of Bombay City Civil Court Act 1948 (Bombay Act XL of 1948) (hereinafter referred to as the Principal Act ). The respondents judgment debtors also contended that the execution application filed by the decree-holder pursuant to the transfer of decree to the City Civil Court Ahmedabad is also barred by time and that the High Court of Bombay had no jurisdiction to transfer the decree to City Civil Court Ahmedabad for the purpose of execution. The respondents judgment debtors also contended that the execution application filed by the decree-holder pursuant to the transfer of decree to the City Civil Court Ahmedabad is also barred by time and that the High Court of Bombay had no jurisdiction to transfer the decree to City Civil Court Ahmedabad for the purpose of execution. ( 3 ) ALL these contentions weighed favourably with the learned Judge of executing Court with the result that he dismissed the execution application with costs and raised the attachment over the properties of the respondents. This order was passed by the learned Judge on 28th April 1966 and it is against this order that the original decree-holder has preferred this appeal. ( 4 ) IN this appeal Miss Shah who appeared on behalf of the appellant contended that the High Court of Bombay had jurisdiction to pass the decree sought to be executed in view of the fact that when original Civil suit no. 1674/47 was filed in the said High Court City Civil Court Bombay was not in existance. It came into existance during the pendency of that suit on 16th Aug. 1948 but at that time the City Civil Court Bombay had jurisdiction to receive try and dispose of only these suits and proceedof civil nature which did not exceed Rs. 10 0 value. It was pointed out that since the suit which was filed by the decree holder was for the realisation of 13270/it was not liable to be transferred to the City Civil Court Bombay under sec 18 of the Principal Act. It was further pointed out that subsequently during the pendency of the suit the pecuniary jurisdiction of City Civil Court Bombay was raised to suits and proceedings of civil nature not exceeding Rs. 25 0 in value but since this pecuniary jurisdiction was raised prospectively from 20th January 1950 the date on which the notification which raised that pecuniary jurisdiction came into force the proceedings of the present suit were not liable to be transferred to the City Civil Court Bombay and therefore even after the raising of the pecuniary jurisdiction of the City Civil Court Bombay to the limit of Rs. 25 0 the High Court of Bombay did not cease to have jurisdiction over the matter. According to Miss Shah therefore when on 16tb March 1951 the High Court of Bombay passed the decree of Rs. 25 0 the High Court of Bombay did not cease to have jurisdiction over the matter. According to Miss Shah therefore when on 16tb March 1951 the High Court of Bombay passed the decree of Rs. 19770/in favour of the decree holder it bad full jurisdiction over the subject-matter of the suit. ( 5 ) MISS Shah also contended that the High Court of Bombay had also jurisdiction to entertain the execution application inspite of the provisions contained in sec. 12 and 3 of the Principal Act because it being the court which passed the decree sought to be executed it had never lost its jurisdiction to execute the same inspite of the fact that the jurisdiction over the subject-matter of the suit was transferred to the City Civil Court. According to Miss Shah therefore the High Court of Bombay had not only jurisdiction to entertain execution application filed before it but had also jurisdiction to transfer the decree for execution to City Civil Court Ahmedabad. ( 6 ) ON the question of limitation it was contended by Miss Shah that the decree in question was passed by a Chartered High Court and therefore period of limitation would be 12 years for the purpose of execution of the decree and that period should be computed as provided by Art. 183 of the First Schedule attached to the Limitation Act 1908 which was in force at the relevant time. ( 7 ) M/s. B. R. Shah and P. M. Shah who appeared on behalf of the respondents-judgment debtors supported the view taken by the executing court by contending that the decree in question is not executable as it is not passed by a court having jurisdiction in the matter and that at any rate the High Court of Bombay had no jurisdiction either to entertain an execution application or to transfer the decree for execution to any other court in view of the fact that at the relevant time it was only the City Civil Court Bombay which had such a jurisdiction. In support of this latter contention reliance was placed on a decision given by the High Court of Bombay in Vishwanath Keshav Joshi v. B. M. Sukhadwalia reported in 51 B. L. R. 276 wherein it is held that the proceedings to execute a decree passed by the Bombay High Court for a sum exceeding Rs. In support of this latter contention reliance was placed on a decision given by the High Court of Bombay in Vishwanath Keshav Joshi v. B. M. Sukhadwalia reported in 51 B. L. R. 276 wherein it is held that the proceedings to execute a decree passed by the Bombay High Court for a sum exceeding Rs. 2 0 but not exceeding Rs. 10 0 filed after the coming into force of the Bombay City Civil Court Act 1948 lie in the Bombay City Civil Court and not in the Bombay High Court. ( 8 ) A further point which was raised on behalf of the respondents was that the execution application which is filed by the appellant-decree holder in City Civil Court Ahmedabad pursuant to the transfer of decree from the High Court of Bombay is barred by the period of limitation inasmuch as it is filed on 28th April 1964 i. e. 12 years after the decree sought to be executed was passed on 16th March 1951 ( 9 ) AFTER the arguments of the learned advocates of the parties were heard I noticed that the objections raised by the respondents-judgment debtors to the maintainability of the execution application on the ground of jurisdictions were barred by principle of constructive res judicata but since the point was not argued by the learned advocates of the parties both the parties were given a fresh opportunity to address the court on this point. They were accordingly heard even on the question of constructive res judicata. ( 10 ) IN view of the above I find that following points are involved in this appeal:- (1) Whether the execution application bearing No. 237/64 filed by the appellant decree-holder in the City Civil Court Ahmedabad is barred by limitation ? (2) Whether the contentions raised by the respondents-judgment debtors against the maintainability of execution application on the ground of jurisdiction are barred by the principle of constructive res-judicata 7 (3) Whether the High Court of Bombay had no jurisdiction to pass the decree which is sought to be executed ? (4) If the point No. 2 is decided in the negative whether the High Court of Bombay had any jurisdiction to transfer the decree passed by it for execution to City Civil Court Ahmedabad ? (4) If the point No. 2 is decided in the negative whether the High Court of Bombay had any jurisdiction to transfer the decree passed by it for execution to City Civil Court Ahmedabad ? ( 11 ) BEFORE taking up these points for my consideration I find that it would be necessary to state shortly some relevant facts which would be helpful in deciding them. ( 12 ) AS stated above the appellant-decree holder filed the original suit in the year 1947 for the recovery of Rs. 13210/in the High Court of Bombay on its original side. The judgment-debtors who were defendants in that suit did not appear either in person or by advocate and therefore upon hearing the evidence offered by the plaintiff and perusing the exhibits the High Court eventually passed a decree of Rs. 19770-00 with running interest at the rate of 4 % and costs of the suit on 16th March 1951 This being a decree passed by a Chartered High Court it was not required to be executed at the end of every three years because Art. 182 of the Limitation Act of 1908 did not apply to such decrees. It was Art. 183 which applies to the facts of the case. According to this Article a period of limitation of 12 years is provided for the enforcement of a decree passed by any court established by Royal Charter in exercise of its ordinary original civil jurisdiction. It is an admitted fact that before the present execution application was filed in City Civil Court Ahmedabad the decree holder presented an application for execution of this decree for the first time in the Bombay High Court on 13-10-61 when the said execution application was obviously within the period of limitation On this execution application a notice under Order 21 Rule 22 C. P. C was issued on 2nd September 1963 against the respondent-judgment debtors but the respondents-judgment debtors did not appear in response to that notice with the result that the same was made absolute pursuant to the Judges order dated 22nd November 1963 and the decree holder (appellant) was given opportunity to execute the decree against the respondents-judgment debtors. In the record we find a certificate dated 114 given by the Prothonotary and Senior Master of the Bombay High Court to this effect. In the record we find a certificate dated 114 given by the Prothonotary and Senior Master of the Bombay High Court to this effect. That certificate shows that no satisfaction of the decree was obtained by the execution. The decree-holder thereafter appears to have moved the High Court of Bombay to transfer the decree for execution to City Civil Court Ahmedabad as a result of which the said Prothonotary and Senior Master of the Bombay High Court is found to have made following endorsement under the decree on 24th April 1964 :-CERTIFIED copy of decree and certificate to be transmitted to the Registrar City Civil Court Ahmedabad for execution against the defendants. Execution here stayed. Costs Rs. 86. 00. Within 8 days thereafter i. e. on 28th April 1964 the decree-holder is found to have filed the present execution application in City Civil Court Ahmedabad where it is registered as Darkhast No. 237/64. ( 13 ) IT is from these facts that the points at dispute between the parties in this appeal are required to be determined. The first question is whether the present Darkhast which was filed on 28th April 1964 is barred by limitation or not. As stated above the decree in question is found to have been passed by the High Court of Bombay which is one of the Courts established by Royal Charter in exercise of its ordinary original civil jurisdiction. It is obvious therefore that the period of limitation for the execution of this decree would be 12 years. It is an admitted position that provisions contained in sec. 48 of C. P. C. which provides for the time limit of 12 years for execution of a decree do not apply to the facts of this case for the simple reason that the matter is governed by Art. 183 which applies to the decrees passed by courts established by Royal Charter. Now according to Art. 183 of the Limitation Act 1908 the the period of 12 years would begin to run when a present right to enforce the decree in question accrues to the person capable of releasing the right. Now according to Art. 183 of the Limitation Act 1908 the the period of 12 years would begin to run when a present right to enforce the decree in question accrues to the person capable of releasing the right. But this provision is further controlled by a provisio which is in the following termst:-PROVIDED that when the judgment decree or order has been revived or some part of the principal money secured thereby or 50me interest on such money has been aid or some acknowledgement of the right thereto has been given in writing signed by the person liable to pay such principal or interest or his agent to the person entitled thereto or his agent the twelve years shall be computed from the date of such revivor payment or acknowledgement or the latest of such revivors payments or acknowledgements as the case may be. If this proviso governs the facts of the case then the period of 12 years would run not from the date of the decree when the right is accrued but from the date of the revivor or payment or acknowledgement if any. In my view the above stated facts of the case show very satisfactorily that a revivor as contemplated by the above quoted proviso attached to Art. 183 of the Limitation Act 1908 has taken place in this case in the execution proceedings filed by the decree-holder in the High Court of Bombay prior to the institution of the present execution proceedings. As pointed out by a Division Bench case of Patna High Court in Harnarain v. Dayabhai Hira Chand reported in A. I. R. 1940 Patna 596 at page 599 the term revivor used in Art 183 of the Limitation Act refers to the Common Law practice under which if a writ of execution was not sued out within a year and a day it was necessary to revive the decree by the process known as scire facias i. e. to say by calling on the judgmentdebtor to show cause why the decree holder should not have execution against him. The doctrine has its origin in she presumption of satisfaction which was held to arise when execution had not been applied for within a year and a day after the date of the judgment. The doctrine has its origin in she presumption of satisfaction which was held to arise when execution had not been applied for within a year and a day after the date of the judgment. The rule is now found embodied in Order 21 Rule 22 of the Civil Procedure Code 1908 under which when an application is made more than one year after the date of the decree notice is required to be issued to the person against whom the execution is prayed requiring him to show cause why the decree should not be executed against him. In order to constitute a revivor or a decree there must be expressly or by implication a determination by a court that the decree is still capable of execution and that the decree holder is entitled to enforce it. As held by the High Court of Allahabad in Ram Krishna Murarji v. Ratan Chand and another reported in A. I. R. 1956 Allahabad 32 the essense of the doctrine of revivor is that the notice should be issued to the judgment-debtor and after giving him an opportunity of being heard the court should record a finding explicitly of impliedly that the decree or order in question is executable. The same view is taken by a Division Bench of Bombay High Court in Kirtilal Jivabhai v. Chunilal Manilal reported in A. I. R. (33) 1946 Bombay 27. In Gopalravadu v. Gopal Krishnayya A. I. R. 1945 Madras 325 the Madras High Court has held that revivor is an order in execution against a particular person consequent upon a notice and the indication by the executing court that the decree was still alive and capable of being executed was enough to revive the decree and give a fresh starting point of limitation. In the execution application which was filed by the decree holder in this case in the High Court of Bombay a rule was issued and was subsequently made absolute by the court and the decree-holder was given liberty to execute the decree. Under these circumstances the final determination made by the court about the executability of the decree in that execution application amounted to revivor and if that be so the period of limitation of 12 years contemplated by Art. 183 of the Act should be computed from 11th April 1964 the date on which the said determination was made. Under these circumstances the final determination made by the court about the executability of the decree in that execution application amounted to revivor and if that be so the period of limitation of 12 years contemplated by Art. 183 of the Act should be computed from 11th April 1964 the date on which the said determination was made. Under the circumstances the present execution application is obviously filed within the period of limitation and therefore so far as the first point is concerned the respondents cannot succeed. ( 14 ) THE second point involved in this matter is regarding constructive res-judicata and relates to the contention raised on behalf of the judgmentdebtors as regards the mintainability of the execution of the decree. As already stated above the contention is that after the jurisdiction of the City Civil Court Bombay was raised in January 1950 to hear the suits and proceedings not exceeding Rs. 25 0 in value the High Court of Bombay ceased to have any jurisdiction to entertain applications for executing the decrees for Rs. 25000/and below even though validly passed by it because such applications could be filed only in City Civil Court Bombay. It was pointed out that since in this case the decree was for Rs. 19770/the High Court of Bombay had no Jurisdiction to entertain this execution application or to entertain any proceedings even for transfer of the decree to any other court for execution. For this proposition a strong reliance was placed on the decision of Bombay High Court in Vishvanath Keshav v. B. M. Sukhadwalia (supra ). ( 15 ) I am of the opinion that this contention is not available to the judgment-debtors as it is barred by the principle of constructive res judicata. I have already stated above that before this execution application was filed on the transfer of the decree to City Civil Court Ahmedabad the decreeholder had preferred an execution application on 13-10-61 in the High Court of Bombay. Notice under 0. 21 R. 22 C. P. C. was also issued in that application and the same was made absolute on 22nd November 1963 as the judgment debtors did not appear to take objections to the execution. Notice under 0. 21 R. 22 C. P. C. was also issued in that application and the same was made absolute on 22nd November 1963 as the judgment debtors did not appear to take objections to the execution. It is thus evident that in these execution proceedings before the Bombay High Court the judgment debtors failed to raise any contention that the High Court of Bombay had no jurisdiction to execute the decree. The question is whether they can be permitted to agitate this question in this subsequent execution filed in City Civil Court Ahmedabad. ( 16 ) ANSWER to this question is provided by authoritative pronouncements of Supreme Court in Mohanlal v. Benoy Kishna reported in A. I. R. 1953 S. C. 65 and of this court in Ghanchi Laxmichand v. Tulsidas reported in A. I. R. 1963 Gujarat 1. (III 1962 G. L. R. 1q32 ). ( 17 ) IT is now a settled legal position ever since the decision of the Judicial Committee in 1883 in Ram Kirpan v. Rup Kuari (1883) 11 I. A. 37 that sec. 11 Civil Procedure Code which deals with the principle of resjudicata is not exhaustive and hence this principle can be applied even to execution proceedings. However on the question relating to the application of constructive res judicata contained in Explanation IV of sec. 11 Civil Procedure Code some High Courts have taken a view that this principle cannot be extended to execution proceedings and that an order made in execution proceedings should not have the force of res judicata unless the point raised in subsequent proceedings was actually raised and decided in previous proceedings. Patna case of Prithi v. Jamshed A. I. R. 1922 Patna 289 Calcutta case of Gourmoni v. Jughat Chandra I. L. R. 17 Cal. 57 and Madras case of Somsundaram v. Chokkalingum I. L. R. 40 Madras 780 and Subramanya v. Rajeswara I. L. R 40 Madras 1016 are the instances on the point. In Mannu Singh v. Hanuman Singh A. I. R. 1951 Allahabad 398 Allahabad High Court held that the principle of constructive res judicata would apply only if the previous execution application has been fructuous. ( 18 ) ALL these decisions have lost their efficacy in view of the above referred decisions of Supreme Court in Mohanlal v. Benoy Kishna and of this Court in Ghanchi Laxmichand v. Tulsidas. ( 18 ) ALL these decisions have lost their efficacy in view of the above referred decisions of Supreme Court in Mohanlal v. Benoy Kishna and of this Court in Ghanchi Laxmichand v. Tulsidas. A full Bench of Madras High Court has rejected the above view in Venkatarama v. China Seethamma A. I. R. 1941 Mad. 440. This and other decisions rejecting the above view need not be discussed here in view of the exhaustive treatment of the subject made by this court in Ghanchi Laxmichandas case (supra ). In this last named case Bhagwati J. (as he then was) has considered the scheme of 0. 21 Rules 22 and 23 along with the provisions contained in secs. 47 and 2 (2) C. P. C. and has concluded that where a judgment debtor does not appear in answer to the notice under O. 21 Rule 22 C. P. C. to show cause why the decree should not be executed against him O. 21 Rule 23 provides that the court shall order the decree to be executed. Such an order being a determination of a question within sec. 47 amounts to a decree within the meaning of sec. 2 (2) C. P. C. and therefore if such a decree becomes final the judgment debtor cannot be permitted to contend at any subsequent stage of execution proceedings that the order was not rightly made. It is further held in this case that if the order under O. 21 R. 23 can operate as res-judicata in regard to the contentions urged at the hearing of the notice under O. 21 R. 22 that order must equally operate as constructive res-judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under O. 21 R. 22. Equally must the order under O. 21 R. 23 operate as constructive res-judicata if the person against whom the decree is sought to be executed does not appear in answer to the notice under O. 21 R. 22 and the order directing the decree to be executed is therefore made by the court. Equally must the order under O. 21 R. 23 operate as constructive res-judicata if the person against whom the decree is sought to be executed does not appear in answer to the notice under O. 21 R. 22 and the order directing the decree to be executed is therefore made by the court. This decision is thus a complete answer to the question whether the principle of constructive res-judicata can be applied to those execution applications wherein at a prior stage the court had no occasion to give actual decision on the disputes subsequently raised or where the prior execution has not fructified. In Mohanlal v. Benoy Kishna (supra) even the Supreme Court has taken the same view. ( 19 ) SHRI Shah arguing on behalf of the respondents judgment debtors however contended that this court should refuse to apply the principle of Constructive res-judicata to the present case on the ground that there was total lack of inherent jurisdiction in the High Court of Bombay to entertain and to proceed with the previous execution and therefore to transfer the decree for execution to any other court. I find that even this contention of Shri Shah should be rejected in view of the decision given by the Supreme Court in the above referred case of Mohanlal v. Benoy Kishna (A. I. R. 1953 S. C. 65 ). This very argument has been considered and rejected by the Supreme Court in that case. At this stage it would be necessary to state shortly a few facts of that case. The decree sought to be executed in that case was passed by the High Court of Calcutta on its original side. On 12-6-1937 the High Court of transferred the said decree for execution to Asansol Court where decree holders application for execution was dismissed for default on 11-3-1932. Thereupon the Asansol Court sent to the High Court what in form purported to be a certificate under sec. 41 C. P. C. The said court however did not return the certified copy of the decree and other documents transferred to it by High Court. On 24-11-1932 the decree-holder filed another petition for execution of the decree in Asansol Courtduring the course of this second execution some properties of the judgment debtor were put to sale in public auction and were purchased by the decree holder. The sale was subsequently set aside. On 24-11-1932 the decree-holder filed another petition for execution of the decree in Asansol Courtduring the course of this second execution some properties of the judgment debtor were put to sale in public auction and were purchased by the decree holder. The sale was subsequently set aside. The properties were again sold in public auction and again it was set aside. There was third sale which was confirmed. Thereafter the judgment debtors raised a contention by filing an application under sec. 47 and 151 C. P. C. that certificate sent by Asansol Court in 1932 at the end of the first execution application was in substance a certificate under sec. 41 Civil Procedure Code and therefore after sending that certificate the Asansol Court ceased to have jurisdiction to entertain second execution application as there was no fresh transmission of the decree by the High Court to that court. Such an objection was not raised by the judgment debtors at any stage of the second petition for execution. ( 20 ) IT is obvious from these facts that the question which was involved in that case was one of inherent jurisdiction of the Asansol Court to entertain and proceed further with the second execution application. The Supreme Court held that where neither at the time when the execution application was made and a notice served on the judgment-debtor nor at a subsequent stage the judgment debtor raised any objection on the ground that executing court had no jurisdiction to execute the decree the failure to raise such an objection which goes to the root of the matter precludes him from raising the plea of jurisdiction on the principles of constructive res judicata. The Supreme Court has further observed in that case that oven an erroneous decision on a question of law operates as res judicata between the parties because correctness or otherwise of 8 judicial decision has no bearing on the question whether or not it operates as res judicata. The Supreme Court has further observed in that case that oven an erroneous decision on a question of law operates as res judicata between the parties because correctness or otherwise of 8 judicial decision has no bearing on the question whether or not it operates as res judicata. It should be noted that in that case the High Court of Calcutta had refused to apply the principle of constructive res judicata on the ground that there was lack of inherent jurisdiction in the executing court to proceed with execution but this view of the High Court was rejected by the Supreme Court as is clear from the judgment recorded by Ghulam Hasan J. This decision of the Supreme Court is followed by different High Courts and its ratio is applied even in case where a question of courts jurisdiction to entertain execution application was involved. Patna case of Dhirendra Nath v. Satish Chandra A. I. R. 1956 Patna 4 Full Bench decision of Orissa High Court in J. Ramanuj v. Lakshmi Narayan A. I. R. 1960 Orissa 194 Mysore case of Satappa v. Hirachand A. I. R. 1961 Mysore 54 and Kerala case of Raman v. Ambujakshi. 1962 Kerala 15 are the instances on the point. Some of these High Courts have made observations suggesting that cases of total lack of inherent jurisdiction in the executing court would not invite the application of the principle of constructive res judicata but such observations do not get any support from the judgment recorded by Ghulam Hasan J. in the above referred Supreme Court case of Mohanlal v. Benoy Kishna. I find that even if an exception is made of the cases wherein excuting court which dealt with the matter at a prior stage was totally lacking in inherent jurisdiction to entertain the petition for execution that does not help the judgment the debtors in this case because the discussion which follows shows that the High Court of Bombay which had passed the decree sought to be executed was not lacking in an inherent jurisdiction to entertain the application to execute the decree inspite of the change in the pecuniary jurisdiction of the City Civil Court Bombay. . . ( 21 ) AT thus stage it would be necessary to state shortly the course of events which led to the raising of the pecuniary jurisdiction of City Civil Court Bombay in the month of January 1950 and the relevant provisions of the Principal Act. ( 22 ) THIS suit was filed in the High Court of Bombay in 1947 when the Principal Act was not even enacted. It is an admitted position that the Principal Act came into force from 16th August 1948 According to sec. 3 thereof notwithstanding anything contained in any law City Civil Court Bombay shall have jurisdiction to receive try and dispose of all suits and other proceedings of civil nature not exceeding ten thousand rupees in value. The present suit admittedly exceeded Rs. 10 0 in value and therefore when the Principal Act came into force City Civil Court at Bombay did not acquire any jurisdiction to try and dispose it of. The suit therefore remained within the jurisdiction of the High Court. Thereafter while this suit was still pending in the High Court the Government of Bombay issued a notification known as Jurisdiction Notification on 20th January 1950 By this notification the jurisdiction of City Civil Court Bombay was raised to the pecuniary limit of Rs. 25 0this notification is in the following words:- bombay Castle 20 January 1950 bombay City Civil Court Act 1948 No. 2346/5in exercise of the powers conferred by sec. 4 of the Bombay City Civil Court Act 1948 (Bom. XL of 1948) the Government of Bombay is pleased to invest with effect from and on the date of this notification the City Court with jurisdiction to receive try and dispose of all suits and other proceedings of a civil nature not exceeding twenty five thousand rupees in value and arising within the Greater Bombay subject however to the exceptions specified in sec. 3 of the said Act. By order of the Governor of Bombay V. T. Dehejia secretary to the Government. Validity of this notification was then challenged in Original Civil Jurisdiction Suit No. 240 of 1950 (Narotamdas v. A. P. Phillips 52 Bombay L. R. 579 before the High Court of Bombay. The High Court held It to be invalid and of no effect. As a result of this decision of the High Court all the suits having valuation of more than Rs. The High Court held It to be invalid and of no effect. As a result of this decision of the High Court all the suits having valuation of more than Rs. 10 0 continued to be filed in the High Court and the High Court also continued to try such suits. In the mean while State of Bombay preferred an appeal to the Supreme Court. On 20 December 1950 Supreme Court held that the said notification was intra vires and legal. (Vide State of Bombay v. Narotamdas 53 B. L. R. 402 ). In view of this decision of the Supreme Court it was found necessary to validate the suits and proceedings instituted tried and disposed of by the High Court during the interval between the date of the above referred Jurisdiction Notification and the decision of the Supreme Court. In the result Bombay Act XV of 1951 called Bombay Special Suits and Proceedings Validating Act 1951 (hereinafter referred to as Validating Act) was passed on 24th April 1951 In the meanwhile the decree in the present suit was already passed by the High Court on 16th March 1951 Sec. 3 of the Validating Act validated the decrees passed by the High Court only in those suits which were instituted after the date of jurisdiction notification (viz. 20th January 1950 The present suit was not instituted after the date of Jurisdiction Notification and hence the said section did not apply to it. For the same reason even sec. 4 thereof which applied to pending and dismissed suits did not apply to it. The result was that the record of this suit remained with the High Court. ( 23 ) FROM these facts the first question which would arise to be considered is whether the High Court of Bombay had no jurisdiction to pass the decree sought to be executed. If the answer to this question is that the High Court had such a jurisdiction then the next question would be whether it had no inherent jurisdiction to execute the decree passed by it. ( 24 ) REVERTING to the provisions of the Principal Act we find that sec. 12 thereof puts a bar to the jurisdiction of the High Court to try suits and proceedings cognizable by City Court. ( 24 ) REVERTING to the provisions of the Principal Act we find that sec. 12 thereof puts a bar to the jurisdiction of the High Court to try suits and proceedings cognizable by City Court. But this section is controlled by a proviso which is in the following terms:-PROVIDED that High Court may for any special reason and at any stage remove for trial by itself any suit or proceeding from the City Court. This proviso and secs. 13 and 14 of the Principal Act show that hough sec. 12 barred the jurisdiction of the High Court to try suits and proceedings cognizable by City Court it did not lose its inherent jurisdiction to try cases cognizable by City Court in certain specified circumstances. These secs. 13 and 14 are in the following terms:- 13 If in any suit instituted in the High Court the Judge who tries it is of the opinion that it ought to have been instituted in the City Court and in such suit (a) if the plaintiff does not obtain a decree the defendant shall be entitled to his costs as between attorney and client; or (b) if the plaintiff obtains a decree for any matter of an amount or value less than the maximum amount of the pecuniary jurisdiction of the City Court no costs shall be allowed to the plaintiff. 14 When any suit or proceeding is removed for trial to the High Court from the City Court under sec. 12 (a) it shall be heard and disposed of by the High Court in the exercise of its original civil jurisdiction and the said court shall have all the powers and jurisdiction in respect thereof as if it had been originally instituted in such court; (b) court fee on the scale for the time being in force in the High Court as a court of original civil jurisdiction shall be payable in that court in respect of the suit or proceeding therein; provided that in the levy of any such fee which according to the practice of the court is credited to the State Government credit shall be given for the institution fee already paid in the City Court. Proceeding further with the provisions of the Principal Act we find that sec. Proceeding further with the provisions of the Principal Act we find that sec. 18 provides for the transfer of suits pending in High Court in the following terms:- 18 (1) All suits and proceedings cognizable by the City Court and pending in the High Court in which issues have not been settled or evidence has not been recorded on or before the date of coming into force of this Act shall be transferred to the City Court and shall be heard and disposed of by the City Court and the City Court shall have all the powers and jurisdiction thereof as if they had been originally instituted in that court. (2) In any suit or proceeding so transferred institution fee shall be paid credit being given to any court fee levied in the High Court and costs incurred in the High Court till the date of the transfer shall be assessed by the City Court in such manner as the State Government may after consultation with the High Court determine by rules. ( 25 ) NOW the first important point to be noted is that none of these provisions applied to the present suit on 16th August 1948 when the Principal Act was brought into force for the simple reason that its pecuniary valuation was more than Rs. 10 0 Therefore on 16th August 1948 City Court Bombay had no jurisdiction to try it. The Jurisdiction Notification which raised the pecuniary jurisdiction of the City Court came into force on 20th January 1950 This notification is already quoted above. A bare perusal of this notification shows that the jurisdiction of the City Court was raised to Rs. 25 0 effect from and on the date of notification i. e. with effect from and on 20th January 1950 The notification is therefore prospective and not retrospective in its operation. It does not provide for the transfer of pending suits and it is an admitted position that there is no other order evidencing transfer of business contemplated by sec. 150 C. P. Code. The learned Judge of the lower court seems to be of the opinion that with the raising of pecuniary jurisdiction of the City Court on 20th January 1950 the provisions of the Principal Act contained secs. 3 12 nd 18 automatically applied even to the proceedings pending in High Court. 150 C. P. Code. The learned Judge of the lower court seems to be of the opinion that with the raising of pecuniary jurisdiction of the City Court on 20th January 1950 the provisions of the Principal Act contained secs. 3 12 nd 18 automatically applied even to the proceedings pending in High Court. Such a view is not justified in view of the facts that the operation of the Jurisdiction Notification is merly prospective and that there are no directions regarding the transfer of pending proceedings. It need not be emphasised that sec. 18 of the Principal Act applied to the proceedings which were pending in High Court and which were cognizable by City Court on the date on which the Principal Act came into force. The present suit was not covered by sec. 18 on the date of the application of the Principal Act and therefore a special provision for its transfer was necessary after the issuance of Jurisdiction Notification on 20th January 1950 in order to invest the City Court with jurisdiction to try it. Since this was not done the High Court continued to have jurisdiction to try and to dispose it of. In this view of the matter the learned Judge of the lower Court was in error in holding that the High Court on Bombay had no jurisdiction to pass the decree which is sought to be executed. ( 26 ) THIS brings me to the next question namely whether the High Court of Bombay had no inherent jurisdiction to execute the decree passed by it. In Vishwanath v. Sukhadawala 51 B. L. R. 276 (supra) the Bombay High Court has held that proceedings to execute a decree passed by Bombay High Court for a sum exceeding Rs. 2 0 but not exceeding Rs. 10 0 filed after the coming into force of the Bombay City Civil Court Act 1948 lie in Bombay City Civil Court and not in the Bombay High Court. Facts of that case show that the decree in that suit was passed on April 2 1948 i. e. before the Principal Act was brought into force on 16th August 1948 However execution application was made by the decree-holder on September 22 1948 i. e. after the Principal Act come into force. Facts of that case show that the decree in that suit was passed on April 2 1948 i. e. before the Principal Act was brought into force on 16th August 1948 However execution application was made by the decree-holder on September 22 1948 i. e. after the Principal Act come into force. The Court first considered whether the execution proceedings are the proceedings cognizable by the City Court in view of the fact that the suit had already ended and resulted in a decree. The Court came to the conclusion that execution proceedings were such proceedings. The court thereafter proceeded to consider the provisions of sec. 37 C. P. C. and interpreted the meaning of the expression ;court which passed a decree occurring in that section and relying upon the Calcutta decision in Masrab Khan v. Deh Nath Mali (1942) 1 Cal. 289 held that City Civil Court Bombay was deemed to be the Court which passed the decree which was sought to be executed and therefore that was substituted for the High Court according to the terms of sec. 37 (b) of C. P. C. In view of this the court concluded that it did not retain jurisdiction to execute the decrees exceeding Rs. 2 0 and not not exceeding Rs. 10 0 Sitting as a single Judge I feel myself bound by this decision of the Bombay High Court as it is a decision prior to the establishment of this court. I therefore do not propose to enter into a debate on the question whether in cases where pecuniary or territorial jurisdiction of the court which has passed a decree is subsequently changed the said court loses its jurisdiction to execute the said decree. In view of the application of the principle of constructive res-judicata and in view of some observations of some of the High Courts in cases referred to above going to show that cases of total lack of inherent jurisdiction may form an exception to the application of constructive res-judicata to execution proceedings the limited question which arises for my determination is whether the above referred dicision of Bombay High Court comes in my way in holding that the High Court of Bombay had never lost its inherent jurisdiction to execute the decree passed by it. I find that the case is not examined by that High Court from this angle. I find that the case is not examined by that High Court from this angle. In fact it was not necessary for that court to consider this point. Therefore all that the High Court has held in that case is that in cases where a decree is for the amount between Rs. 2000. 00. and Rs. 10 0 the application to execute that decree should be filed in City Civil Court Bombay after the Principal Act came into force. It says nothing about the inherent lack of High Courts jurisdiction. In my opinion therefore the question whether there was lack of inherent jurisdiction with the High Court is res-integra. If we again peruse the provisions of the Principal Act we find that there is enough evidence contained therein to show that the High Court never lacked in its inherent jurisdiction to try suits and proceedings cognizable by City Court. Had it been so lacking in its inherent jurisdiction the provisions contained in above quoted proviso to sec. 12 as well as in secs. 13 and 14 would never have been there. Even sec. 18 stipulates that the cases and proceedings wherein issues had been settled or evidence had been recorded were not to be transferred to City Court. In other words they were to be disposed of by the High Court. If the High Court was lacking in inherent jurisdiction to try the suits and proceedings cognizable by City Court in no eventuality it would have been invested with any jurisdiction to try such suits and proceedings. This means that though in ordinary course the High Court ceased to have jurisdiction to try suits and proceedings cognizable by City Court its inherent jurisdiction to try and dispose of such suits and proceedings was never lost. In this view of the matter the respondent judgment debtors ought to have raised the question of jurisdiction in the first execution proceedings taken out by the decree-holder in the High Court of Bombay and if they failed in doing so their subsequent challenge on that score would be barred by constructive res judicata. In this view of the matter the respondent judgment debtors ought to have raised the question of jurisdiction in the first execution proceedings taken out by the decree-holder in the High Court of Bombay and if they failed in doing so their subsequent challenge on that score would be barred by constructive res judicata. ( 27 ) WHAT remains now to be considered is a recent decision of Supreme Court on which reliance was placed by Shri Shah for the proposition that where the question is purely of law and it relates to the jurisdiction of the court or a decision of court sanctioning something which is illegal the party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata because the rule of res-judicata being a rule of procedure cannot supersede the law of the land. Such a decision is given by the Supreme Court in N. P. B. Jaiswal v. D. N. B. Jeejeebhoy 1970 (1) S. C. C. 613. After considering the ratio of this decision I find that it does not help the respondents-judgment debtors. It is first necessary to state a few facts which would explain this ratio. The respondent of that appeal before the Supreme Court had granted a lease of a piece of land in village Pehadi taluka Borivli to the appellant Mathura Prasad for constructing building for residential or business purposes. After the appellant constructed buildings on the said land he submitted an application in the court of Civil Judge (J. D.) Borivli that the standard rent of the land be determined under sec. 11 of Bombay Rent Act 1947 This application was rejected by the learned Civil Judge on the ground that the provisions of Bombay Rent Act did not apply to open land let for the purpose of constructing buildings for residence etc. This order was confirmed by the High Court. But in a subsequent decision the same High Court changed its view. The appellant-tenant thereafter filed a fresh petition for an order determining standard rent. This fresh petition was rejected by the court holding that the question had become res-judicata by the decision in the previous proceedings. This view was confirmed by the High Court with the result that the matter was taken to the Supreme Court by the tenant. The appellant-tenant thereafter filed a fresh petition for an order determining standard rent. This fresh petition was rejected by the court holding that the question had become res-judicata by the decision in the previous proceedings. This view was confirmed by the High Court with the result that the matter was taken to the Supreme Court by the tenant. It was found that the view taken by the High Court in previous proceedings was over-ruled even by the Supreme Court in Mrs. Dessibai v. Hingeo Manohar 1962 (3) S. C. R. 928. The question which arose before the Supreme Court for consideration was whether in view of its decision in 1962 (3) S. C. R. 928 the determination of the dispute between the parties in previous proceedings amounted to res-judicata. The Supreme Court resolved this question by observing that what was res-judicata was the previous decision and not the reasons given for the said decision and a pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue. It was further observed that a decision on an issue of law will be res judicata in a subsequent proceeding between the same parties if the cause of action of the subsequent proceeding be the same as in previous proceeding but not when the cause of action is different nor 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. The observations making reference to jurisdiction of the court to try earlier proceeding should be understood in the background of the facts of that case. These facts show that the interpretation which was accepted by the Civil Judge Borivli and the High Court in previous proceeding between the parties was rejected by the Supreme Court in 1962 (3) S. C. R. 928 The interpretation put by the Supreme Court on a provision of law is the law of the land and the said interpretation is effective from the date of the enactment itself. Therefore it is that interpretation which determines the jurisdiction of the court and which also supplies a fresh cause of action to the party concerned. Therefore it is that interpretation which determines the jurisdiction of the court and which also supplies a fresh cause of action to the party concerned. Under the circumstances the previous decision of the High Court in that case could not have operated as res judicata. This position appears to have been summarised by the Supreme Court in the following words :-BUT where the decision is on a question of law i. e. the interpretation of a statute it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression matter in issues in sec. 11 Code of Civil Procedure 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 or a decision of the court sanctioning something which is illegal by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata for a rule of procedure cannot supersede the law of the land. ( 28 ) THE facts of the case under my consideration are entirely different. In this case as shown above it is not possible to say that the High Court of Bombay was totally lacking in inherent jurisdiction to execute the decree passed by it and in response to the notice issued by the High Court under Order 21 Rule 22 the respondents did not appear to raise any objection regarding the jurisdiction of the High Court to execute the decree under the provisions of the Principal Act. In my view therefore this is a case which would be governed by the principle of constructive res judicata. ( 29 ) POINT No. 3 is already covered by the above discussion which shows that the High Court of Bombay had jurisdiction to pass the decree in jurisdiction. In view of my answer to point No. 2 the consideration of point No. 4 is not called for. ( 30 ) IN the result this appeal succeeds and is therefore allowed with costs throughout. In view of my answer to point No. 2 the consideration of point No. 4 is not called for. ( 30 ) IN the result this appeal succeeds and is therefore allowed with costs throughout. The decision appealed against is set aside and the lower court is directed to proceed further with the execution of the decree transferred to it by the High Court of Bombay. Attachment of judgment debtors properties granted pending this appeal is continued till the executing court thinks it proper to alter or modify the order relating to the same. .