JUDGMENT This Second Appeal is at the instance of the plaintiffs. Their suit for declaration of tile, confirmation of possession and for permanent injection was dismissed by the learned Munsif, 2nd Court, krishnagar. The learned Subordinate Judge, Nadia also dismissed the appeal confirming the findings of the learned Munsif. Thereafter, this second appeal was preferred. 2. The predecessor-in-interest of the plaintiffs held a reiyati jama comprising 14.22 acres of land in Khatian No. 831 Mouza Dhananjoypur under Nakashipara police station under Jyotish Chandra Pal Choudhury and other at an annual rent of Rs. 19-7 annas. The said J.C. Pal Choudhury obtained a decree for arrear of rent against the plaintiffs processors-in-interest in Rent Suit No. 718 of 1937. Thereafter, the said decree-holder put up the said decree in to execution in Rent Execution Case No. 262 of 1940. While the said execution case was pending the present plaintiff made an application to Dhananjoypur Debt Settlement Board for settlement of his debt under the provisions of Bengal Agricultural Debtor’s Act, 1936. The Debt Settlement Board had given notice thereof to the executing court and the further proceedings in Rent Execution Case No. 262 of 1940 had remain favour of the plaintiff. In the meantime, the Executing court had issued notice upon the judgment-debtors to how cause why the stay of the said execution case shall not be vacated and on February 18, 1950 the said stay was vacated. On October 10, 1950, the suit property was auction sold in Rent Execution Case No. 262 of 1940. The present plaintiff, had filed an application under S.47 read with Order 21 rule 90 of the Code of Civil Procedure for setting aside the said sale held on October 10, 1950. The learned Munsif, 2nd Court at Krishnagar by his order, dated May 31, 1951 dismissed the said application on contest. 3. Thereafter, on September 10, 1955 the present plaintiffs instituted a title suit inter alia for a declaration of their title and for further declaration that the auction sale of the suit property in Rent Execution Case no. 262 of 1940 was illegal, fraudulent and void. They also prayed for confirmation of possession and for permanent injunction. 4. Both the trial court and the lower appellate court have held that the plaintiff Misc. 262 of 1940 was illegal, fraudulent and void. They also prayed for confirmation of possession and for permanent injunction. 4. Both the trial court and the lower appellate court have held that the plaintiff Misc. case under S.47 of the Cod of Civil Procedure having been dismissed on May 31, 1951 the present suit was barred under S.47 of the Code and the question involved was concluded by principles of res judicata. The trial court and also the lower appellate court did not determine the remaining issues in the suit. The principal question in this Second Appeal is whether the suit in question was maintainable in law, Section 33 of the Bengal Agricultural Debtor’s Act 1936 lays down that except as provided in the said Act "No Civil or Revenue Court shall entertain a suit application or proceeding against the debtor in respect of (a) any debt included in application under S. 8 or in a statement under sub-s.(1) of S. 13, proceedings in connection with which arc pending before a Board or an Appellate officer or a District Judge or an additional District Judge,' or . (b) any debt for which any amount is payable under aft award except in accordance with the provisions of sub-s (5) of S. 29" 5. The expression 'application' in S.33 of the Bengal Agricultural Debtor's Act is wide enough to include execution proceedings. The aforesaid execution proceedings had remained prayed under S. 34 of the laid Act on receipt of a notice that the plaintiffs had applied for settlement of their debts to Dhananjoypur Debt Settlement Board until the said stay order was purported to be vacated. 6. The defendant neither alleged nor proved that the award dated January 8, 1949 of the Debt Settlement Board in favour of the plaintiffs laid become inexcusable before Civil Court sold the suit property in auction laid on October 10, 1950. Thus, there was no evidence before the court that the certificate officer under S. 29(5) had failed to recover the amount payable under the aforesaid award, dated January 1, 1949 and had certified that the amount in question bad become irrecoverable. Thus, there was no evidence before the court that the certificate officer under S. 29(5) had failed to recover the amount payable under the aforesaid award, dated January 1, 1949 and had certified that the amount in question bad become irrecoverable. Therefore, S. 33 of the Bengal Agricultural Debtors' Act was a clear bar to the execution of the decree obtained by J.C Pal Chowdhury against the predecessors of the plaintiffs in Rent Suit No. 718 of 1937 and which was put to execution in Rent Execution Case No. 262 of 1940. 7. In other words, the Civil Court had no jurisdiction to execute the decree in respect of any debt of the plaintiffs which was included in the award of the Debt Settlement Board dated January 8, 1949. In this case, the further complication has arisen by reason of dismissal of the plaintiff’s application under S.47 read with Order 21 Rules 90 of the code of Civil Procedure for setting aside the auction sale dated October 10, 1950 in Rent Execution Case No. 262 of 1940. Therefore, we have to consider whether or not the question of validity or otherwise of the said execution sale is concluded by the principles of res judicata and whether the instant suit was barred under S.47 of the Code of Civil Procedure. 8. There is ample authority for the proposition that the refusal of the executing court to execute a decree on the ground of absence of jurisdiction will not bar a separate suit by aggrieved party or will operate as res judicata (See Mahabir Singh v. narayan Tewari & Ors, AIR 1931 All 490; A Venkataseshayya & ors, v. A. Virayya & ors, AIR 1958 A.P.I) Reference may also be made to the decision of Mookerjee and Cunning, JJ. In Kalipada Sarkar v. Hari Mohan Dalal, ILR 44 Cal 627. Their Lordships were inclined to hold that the validity of a decree cannot be questioned in execution proceeding on the ground that as the lunatic plaintiff was not properly represented in the suit, no decree for cost could have been made against him. Proceeding to enforce a judgment is collateral to the judgment and therefore no enquiry into its regularity or validity can be permitted in such a proceedings. Proceeding to enforce a judgment is collateral to the judgment and therefore no enquiry into its regularity or validity can be permitted in such a proceedings. Their Lordships held that such a decree against a person who was not properly represented is not to be impeached in execution, but should be reversed or annulled in some direct proceeding taken for that purpose, for example an application for revision, by way of appeal, or by way of regular suit in a court of competent jurisdiction. 9. Mr. Gopal Chandra Mukherjee, learned Advocate appearing on behalf of the appellants has also rightly placed reliance to the decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal & ors. v. Dossibayi N.B. Jeejeebhoy reported. In 1970 (1) SCC 613 . Their Lordships inter alia held that a decision relating to jurisdiction of the court of try the earlier proceedings being a pure question of law unrelated to the rights of the parties to a previous suit is not res judicata in the subsequent suit. A question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. If in an erroneous interpretation of the stature the court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statue, the question cannot operate as res judicata between the same parties. Whether the cause of action in the subsequent litigation is the same or otherwise (vide paragraph 10). In view of this authority which is binding upon me, I would hold that the present suit was not barred by principles of res judicata. 10. In the instant case, plaintiffs in their application under Order 21 Rules 90 read with S.47 of the Code of Civil Procedure filed in Title Execution Case No. 262 of 1940 had made two fold allegations. In the first place, they had alleged that the decree under execution was included in an award given by the Debt Settlement Board, so that the decree could not legally be executed by sale. Secondly, they had alleged that the sale processes were fraudulently suppressed by the decree holder opposite party acting in Collusion with the auction purchasers. But a the time of trial of the said Misc. Secondly, they had alleged that the sale processes were fraudulently suppressed by the decree holder opposite party acting in Collusion with the auction purchasers. But a the time of trial of the said Misc. Case the executing court had recorded any award by the Debt Settlement Board. The applicant No. 1 does not in his evidence even claim that the decree has been made the subject matter of such an award. There is nothing to be said about this aspect fo the matter” The execution court upon consideration of the evidence found that there was no fraud in publishing and conduction the sale. Thus, the executing court did not adjudicate whether or not the said decreetal debt was the subject matter of the proceeding under the Bengal Agricultural Debtor’s Act and in the absence of any material the said question was kept open. It is immaterial to consider if the said question of invalidity of the executing proceeding was raised, the executing court would have decided the same. 11. The decisokin of Edgley, J. in Sheikh Tamizali alias Md. Tamizali v. Md. Nasarli Bhaiya & anr. reported in 72 CLJ 66 at page 71does not apply. Edgley, J. in the said case rejected the contention on behalf of the decree holder that once a rent sale had been held that the debt must be regarded as satisfied and the matter would no longer fall within the scope of the Bengal Agricultural Debtor’s Act and the rent sale held by the Civil Court could not be set aside under S.47 of the Code of Civil Procedure, His Lordship had observed that the question as to the validity of an execution sale is clearly a matter which arises between the parties to the suit and relates to execution of the decree and therefore, falls within the purview of S. 47 of the Code of Civil Procedure, His Lordship further held if it is established that a debt in respect of which execution proceedings had been taken was included in an application to the Debt Settlement Board, the court would have no option but to set aside the sale, even if it had received no notice under S. 34 of the Bengal Agricultural Debtor’s Act. Edgley J. (as he then was) in the said case, however, did not consider a case in which the executing court in the absence of sufficient materials had declined to pronounce whether or not the decretal debts under execution were included in award made under the Bengal Agricultural Debtor’s Act. In the present case the executing court did not decide the point and the same was still open. In this connection, reference may also be made to d decision of the Supreme Court in Ramchandra Aaya v. Man Singh & ors. reported in Air 1968 SC 954 . Their Lordships in that case held that when a decree is a nullity and the sale held in execution of that decree was void ab initio the question of any party having resorted to the provisions of Order 21 Rule 89 and Rule 90 of the Cod of Civil Procedure to have the sale set aside does not arise. When a decree being nullity has to be treated as non-est and consequently the sale, when held, was void ab initio, Any claim based on a void sale can be registered without having at sale set aside. 12. In the instant case, if the decretal debt which was under execution was subject-matter of an award under Bengal Agricultural Debtor’s Act, the auction sale must be held to be a nullity which did not require to be set aside. The view finds support from a decision of Debyshire C.J. (as he then was) and Mukherjee J. (as he then was) in Sm. Fatema Khattan Sahebani v. Manindra Chandra Chakravarty, 44 CWN 1125. Their Lordships held that execution sale after receipt of an information under S.35 would be invalid. Lodge J. in Dwijenra Kumar Roy v. Ram Ranjan 51 CWN 255, similarly held that in execution partly governed by sub-s.(1) and partly by subs.(ii) of s. 35 of the Bengal Agricultural Debtor’s Act held in contravention of that section was a nullity the auction purchaser is entitled to a refund of his money under S. 151 of the Code of Civil Procedure. Lodge J. (as he then was) had observed that if the sale was a nullity, there was no necessary of order to set it aside’. 13. Lodge J. (as he then was) had observed that if the sale was a nullity, there was no necessary of order to set it aside’. 13. When the execution sale is a nullity, the executing court itself may in its inherent powers pass an appropriate order or an aggrieved party in a collateral or independent proceeding may establish the sale to be a nullity and obtain appropriate reliefs. 14. For all these reasons. I conclude that the trial court and the lower appellate court erred in law in holding that the instant suit was barred under S.47 of the Code of Civil Procedure and the question was concluded by principles of constructive res judicata. Therefore, the judgments and decrees of both the courts should be set aside. The trial court should now proceed to determine the merits of the case. The trial court will also examine whether the debt under execution was subject matter of the award by the Debt Settlement Board. The trial court will also decide other claims and contentions of the parties. 15. I, accordingly, allow this appeal set aside the judgment and decrees of the Lower Appellant Court and of the trial court and remand the case to the trial court for fresh decision of the remaining issues in accordance with law and in the light of the observations contained in this judgment. The trial court will decide on the evidence already on record and on further evidence, if any, adduced by the parties. 16. In the circumstances of the case, there will be no order as to costs. Appeal allowed. Direction given.