Judgment Ashwini Kumar Sinha, J. 1. This application by the plaintiff/decree holder/petitioner is directed against an order dated the 7th December, 1983, holding that the miscellaneous case No.30/83 filed by the judgment-debtor in Execution Case no.5 of 1983 was maintainable. 2. On the facts of the case, whether the defendants/judgment-debtors were entitled to take an objection in the exection case that they were protected under the Bihar Debt Relief Act, 1976 (being scheduled debtors) and whether the executing court could go behind the decree and hold that the plea of scheduled debtors could be taken at any time are the significant questions to be decided in the present application. 3. The learned counsel for the plaintiff/decree-holder/petitioner has submitted that in the facts of the present case the executing court could not go behind the decree and the executing court has not only acted illegally in exercise of its jurisdiction but has also acted with material irregularity. The learned counsel for the petitioner has further submitted that the impugned order also suffers of jurisdictional error. On the other hand, the learned counsel for the defendants/judgment-debtors/opposite party has submitted that the objection, as taken in the instant case, could be taken at the execution stage and the court below was perfectly within its jurisdiction to hold that the objection taken at the execution stage was tenable and that the miscellaneous case was maintainable. 4. In order to appreciate the respective submission advanced by the respective counsel for the parties, it is pertinent to mention a few facts. On 22-12-1971 the plaintiff brought a money suit for recovery of Rs.2,856/- (including interest)against the defendants in the Court of second Subordinate Judge, patna. On 3-1-1972 the plaint was returned to be presented before the proper court. Thereafter on the same day the plaintiff re-filed the plaint before the First munsif, Patna. Here the suit was re-numbered and it was numbered as Money suit No.132/72. It is this suit with which we are concerned. The aforesaid money suit, on 15-7-1976, was dismissed on account of limitation, though the facts were found in favour of the plaintiff. Thereafter the plaintiff preferred an appeal in the lower appellate court. This was numbered as Money Appeal No.29 of 1976. This money appeal was allowed on 25-7-1979 and the judgment and the decree of the trial court were set aside and the suit was decreed. 5. Thereafter the plaintiff preferred an appeal in the lower appellate court. This was numbered as Money Appeal No.29 of 1976. This money appeal was allowed on 25-7-1979 and the judgment and the decree of the trial court were set aside and the suit was decreed. 5. Here at this stage it is most pertinent to mention that during the pendency of the appeal before the lower appellate court the bihar Debt Relief ordinance, 1976 (Bihar Ordinance No.211 of 1976)came into force on 26-8-1976. This Ordinance was replaced on 22-1-1977 by the Act known as the Bihar Debt relief Act, 1976 (Bihar Act No.10 of 1977 ). I have already just mentioned above that the appeal was allowed on 25-7-1979 ; in other words, the Ordinance and the Act both, on their respective dates, had come into force during the pendency of the appeal in the lower appellate court. 6. The appeal by the lower appellate court having been allowed the defendants preferred a second appeal to this Court, which was numbered as S. A. No.626/79. Later, for very good reasons, the defendants/appellants converted the second appeal into a civil revision and it was numbered as C. R. No.1212/81. This conversion of second appeal into a civil revision was done on 28-7-1981. Thereafter, the civil revisional application, just referred to above, was placed for final hearing and on 13-2-1984 this court passed the following orders : - "after making some submissions, the learned counsel for the petitioners sought permission to withdraw this application in order to enable the petitioners to raise the question with regard to the petitioners being "scheduled debtors" in the execution proceedings. The prayer is allowed and the application is permitted to be withdrawn with liberty, as aforesaid, for raising the objection if the law so warrants. There will be no order as to costs. " 7. During the pendency of the aforesaid civil revisional application the plaintiff/decree-holder/petitioner had levied the execution before the Execution munsif at Patna, on 25-2-1983. This was numbered as Execution Case No.5/83. At this stage, in the execution case the defendants/judgment-debtors/opposite parties filed a petition under Sec.47 about the maintainability executability of the execution case and claimed protection under the Bihar Debt Relief Act, claiming to be "scheduled Debtors". This application of the defendants/judgment-debtors/opposite parties was numbered as misc. Case No.30/83. The plaintiff/decree-holder/petitioner filed the rejoinder to the defendants objection. At this stage, in the execution case the defendants/judgment-debtors/opposite parties filed a petition under Sec.47 about the maintainability executability of the execution case and claimed protection under the Bihar Debt Relief Act, claiming to be "scheduled Debtors". This application of the defendants/judgment-debtors/opposite parties was numbered as misc. Case No.30/83. The plaintiff/decree-holder/petitioner filed the rejoinder to the defendants objection. The miscellaneous case was heard and the executing court on 7-12-1983 passed the impugned order by which the executing court overruled the plaintiffs contention and held that the objection could be taken by the defendants/judgment-debtors and the miscellaneous case was maintainable. Thus, the present civil revisional application by the plaintiff/decrees-holder. 8. On the facts stated in detail as above, it is apparent that the Bihar debt Relief Ordinance, 1976 (Bihar Ordinance No.211 of 1976) had come into force. The learned counsel appearing for the defendants/judgment-debtor does not dispute this fact. Again this Ordinance (Bihar Ordinance 211 of 1976) was replaced by the Bihar Debt Relief Act, 19/6 (Bihar Act No.10 of 1977) and this also came into effect during the pendency of the appeal by the plaintiff in the court of appeal below. This fact is also not disputed by the defendants/judgment-debtors. It is true that the plaintiffs suit was dismissed and it was the plaintiff who had preferred the appeal in the court of appeal below yet the question arises whether, in view of the admitted position that the Bihar Debt Relief Act, 1976 had come into force during the pendency of the appeal, the defendants could submit/object in the court of appeal below that the suit of the nature that it was abated under Sec.3 (1) (c) of the Bihar debt Relief Act, 1976. It is most pertinent to quote Sec.3 of the Bihar debt Relief Act, 1976, in order to decide the significant question involved in this case. It is most pertinent to quote Sec.3 of the Bihar debt Relief Act, 1976, in order to decide the significant question involved in this case. "section 3 : Discharge of debts of scheduled debtors and consequences of such discharge : - (1) Notwithstanding anything contained in any other law for the time being in force or in any contract or other instrument having force of law by virtue of any such law, and save as otherwise expressly provided by Sec.5 of this Act, every debt incurred by a Scheduled debtor before the commencement of this Act including the amount of interest, if any, payable on such debt shall be deemed to have been wholly discharged ; and - (a) no such debt due from a Scheduled debtor shall be recoverable from him or from any movable or immovable property belonging to him, nor shall any such property be liable to be attached or sold or be proceeded against in any manner in the execution of any decree or order relating to such debt ; (b) no Civil Court shall entertain any suit or proceeding against a Scheduled debtor for the recovery of such debt or any portion thereof or any interest due thereon : provided that where a suit or proceeding is instituted jointly against a Scheduled debtor and any other person, nothing in this clause shall apply to the maintainability of a suit or proceeding so far as it relates to such other person ; (c) all suits and proceedings (including appeals, revision, proceeding in execution and attachment), pending on the date of commencement of this Act for the recovery of any such debt or interest due thereon against a scheduled debtor shall abate : provided that where a suit or proceeding is pending jointly against a Scheduled debtor and any other person it shall not abate in so far as the claim against such other person is concerned : provided further that if a sale in an execution proceeding against a scheduled debtor has been confirmed before the commencement of this Act a proceeding to give effect to the sale shall be neither barred nor shall it abate ; (d) every Scheduled debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a civil court in respect of any such debt shall be released ; and (e) every property pledged by a Scheduled debtor shall on the commencement of this Act stand released in favour of debtor, and the creditor shall be bound to return the same to the debtor forthwith. " 9. We are concerned with Sec.3 (1) (c) only which says, as already quoted above, that all suits and proceedings (including appeals, revisions, proceedings in execution and attachment), pending on the date of commencement of this act for the recovery of any such debt or interest due thereon against the Scheduled debtor shall abate The defendants (who were respondents in that appeal)could take a preliminary objection about the maintainability of the appeal itself on the ground that as the defendants were "scheduled debtors", the appeal which was a continuation of the suit had also abated. But, this submission about the abatement of the suit and the appeal was not advanced by the defendants-respondents in that appeal. The question arises whether such an objection about the abatement of the suit and the appeal was available to him in that appeal (filed by the plaintiff) or not ; and, if available, should the defendants not have taken the point about the abatement of the suit and the appeal under Section 3 (1) (c) of the Bihar Debt Relief Act, 1976 . The answer is plain and simple. The appeal was posted for hearing and the bihar Debt Relief Act had come into force. If the defendants were really "scheduled debtors" it was very much open to them to file an application in the appeal to the effect that pending appeal had abated on the ground that the defendants were scheduled debtors. Upon such an application having been filed, the lower appellate court could have itself gone into the issue or could ask the trial court to send a finding on the question whether the defendants were really scheduled debtors. But, for reasons best known to the defendants, they did not take the point when they ought to have taken it. The effect of not taking the point when it was available to the defendants is that it cannot be taken at a later stage, as it would be hit by the principles of Constructive Res judicata. For testing the point, Sec.11 of the code of Civil Procedure may be examined, which reads as follows : s.11. The effect of not taking the point when it was available to the defendants is that it cannot be taken at a later stage, as it would be hit by the principles of Constructive Res judicata. For testing the point, Sec.11 of the code of Civil Procedure may be examined, which reads as follows : s.11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. Explanation IV reads as follows : -Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in the such suit. This Sec.11 underwent and amendment in 1976 and Explanations VII and VIII were inserted by the Civil Procedure code (Amendment) Act, 1976. It would be very pertinent to quote explanation VII (inserted in 1976 ). Explanation VII reads as follows : -Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Before the amendment of the Code in 1976, section 11 was not made applicable to the execution proceedings, but by amendment in 1976, Explanation vii was added and the provisions of this section were made applicable to the execution proceedings also. In the present case, as already stated above, the second Appeal (No.626/79) was filed in 1979, which was later on 28-7-1981 converted into Civil Revision No.1212 of 1981 and this civil revision was ultimately permitted to be withdrawn with some observation on 13th June, 1984. In the present case, as already stated above, the second Appeal (No.626/79) was filed in 1979, which was later on 28-7-1981 converted into Civil Revision No.1212 of 1981 and this civil revision was ultimately permitted to be withdrawn with some observation on 13th June, 1984. It was during the pendency of this civil revision that the present execution was levied to which the defendants filed objection ; in other words, the second appeal in the High Court (later converted into a civil revision) was there after the amendment of the Code in 1976 with Explanation VII to Sec.11 of the code was inserted. 10. Even though Explanation VII to Sec.11 came only in 1976, yet it was well-setteled by several judicial pronouncement that the principle of constructive res-judicata applied to the execution proceedings also. Even before the insertion of Explanation VII to Sec.11 of the Code, it was a well-settled principle of law that doctrine of res-judicata applied to the execution proceedings as well and if a party takes an objection at a certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the Court had adjudicated upon the other objection also and had held against it. This principle of constructive res-judicata has been extended further. If a party has knowledge of a proceeding and having had an opportunity when he might and ought to have raised an objection, he does not do so, he cannot be allowed to raise that objection subsequently, if the court passes order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the parties and decided against it. In the present case the position is still more clear. The defendants (who were respondents in the appeal) could take the preliminary objection about the maintainability of the appeal itself on the ground that the defendants were "scheduled debtors" and could submit that the suit and the appeal must be deemed to have abated under Sec.3 (1) (c)of the Bihar Debt Relief Act, 1976 . The question whether one is a "scheduled debtor" is a pure question of fact and the matter has to be urged and proved. The question whether one is a "scheduled debtor" is a pure question of fact and the matter has to be urged and proved. It is pertinent to quote the definitions of "scheduled debtor", "small farmer" to hold as to whether one is a "scheduled debtor" ; necessarily, it has to be seen whether he is a "small farmer", or "marginal farmer" or "rural artisan" or "agricultural labourer", who is ordinarily residents of State of Bihar. The definitions are quoted below : -scheduled debtor, - Means a person who is a small farmer, or a marginal farmer, or a rural artisan, or an agricultural labourer, who is ordinarily resident in the State of Bihar ; small farmer.- Means a farmer who owns land measuring not more than two acres of irrigated land or four acres of unirrigated land ; marginal farmer.- Means a farmer who owns land measuring not more than one acre of irrigated land or two acres of unirrigated land ; "rural artisan.- Is a person who does not hold any agricultural land and whose principal means of livelihood is production or repair of traditional tools, implements and other articles or things used for agriculture or purposes ancillary thereto and also a person who normally earns his livelihood by practising a craft either by his own labour or by the labour of the members of his family in the rural area, and whose annual income does not exceed Rs.2,400 ; agricultural labourer.- Is a person who follows any one or more of the following agricultural operations in the capacity of a labourer on hire or exchange, whether paid in cash, in kind or partly in cash and partly in kind and who does not hold more than one acre of irrigated or two acres of unirrigated land and whose annual income does not exceed Rs.2,400 : - (i) farming including cultivation all tillage of soil etc. , (ii) dairy farming, (iii) production, cultivation, growing and harvesting of any horticultural commodity. (iv) raising of livestock, bees or poultry, and (v) any practice performed on a farm as incidental to or in conjunction with farm operations (including any forestry or tempering operations) and operations for market and delivery to storage to carriage for transportation of farm production. , (ii) dairy farming, (iii) production, cultivation, growing and harvesting of any horticultural commodity. (iv) raising of livestock, bees or poultry, and (v) any practice performed on a farm as incidental to or in conjunction with farm operations (including any forestry or tempering operations) and operations for market and delivery to storage to carriage for transportation of farm production. A perusal of the aforesaid definitions show that the question whether one is a "scheduled debtor" is a pure question of fact, which needs to be investigated. As already stated above, the Bihar Debt Relief, act, 1976 (Bihar Act No.10 of 1977) had already come into force on 22-1-1977 and the appeal by the plaintiff (Money Appeal No.29 of 1976) was disposed of and allowed in July, 1979, and during the pendency of this appeal before the lower appellate court the defendants never raised a plea of being a "scheduled debtor" and that he was protected under the Bihar Debt Relief Act. Even when the Second Appeal. (No.626/79)filed by the defendants (which was converted into civil Revision No.1212/81)this Court while allowing the prayer of the defendants to withdraw to civil revisional application, it observed that the defendants will have a liberty to take the objection in the execution proceedings only if the law so warrants. Thus, this court never meant that the objection could be taken by the defendants in the execution proceedings without any restraint. If under the law the defendants could take an objection in the execution proceedings, they could take it. But, I have already stated above, the well settled law by several judicial pronouncements. 11. It is also well-settled that the executing court cannot go behind the decree, it must take the decree as it stands. But, this is not an absolute proposition of law and there is an exception to it. It is also established principles of law that an executing court can refuse to execute the decree passed by the court if it is without jurisdiction and, therefore, is a nullity. But, this is not an absolute proposition of law and there is an exception to it. It is also established principles of law that an executing court can refuse to execute the decree passed by the court if it is without jurisdiction and, therefore, is a nullity. It is well-settled in the case of kiran Singh V/s. Chaman Paswan, AIR 1954 SC 340 that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up where ever and whenever it is sought to be enforced, whether in execution or in collateral proceedings But where a defect of jurisdiction was of a kind which fell within the meaning of Sec.21, C. P. C. and section 11 of the Suits Valuation Act, it could not be raised except in the manner, and subject to the conditions mentioned therein. Thus, the well-settled law, in view of the judicial pronouncement, which emerges is that the executing court can go into the question as to whether the decree is without jurisdiction and is a nullity and, if it linds so, it can refuse to execute the decree. 12. This brings to the question, in the facts of the present case, whether the decree of the lower appellate court in money Appeal No.29/76 (which was disposed of on 25-7-1979) after the Bihar Debt relief Act had come into force was without jurisdiction and a nullity. If this was not so, obviously, in view of the aforesaid well-settled principle of law, the objection as raised by the defendants in the execution proceedings could not be allowed to be taken by them at that stage and the executing court could not go behind the decree and it had to take the decree as it stood. 13. Yet, there remains another aspect of the matter, which, in my opinion, is very pertinent to be dealt with. I have already quoted the definitions of "scheduled debtor", "small farmer", marginal farmer", "rural artisan" and "agricultural labourer". One more section of the Bihar Debt Relief Act needs to be referred to, i. e. Sec.3 (1) (b) which reads as follows : s.3. I have already quoted the definitions of "scheduled debtor", "small farmer", marginal farmer", "rural artisan" and "agricultural labourer". One more section of the Bihar Debt Relief Act needs to be referred to, i. e. Sec.3 (1) (b) which reads as follows : s.3. Discharge of debts of Scheduled debtors and consequences of such discharge.- (1) Notwithstanding anything contained in any other law for the time being in force or in any contract or other instrument having force of law by virtue of any such law and save as otherwise expressly provided by section 5 of this Act, every debt incurred by a Scheduled debtor before the commencement of this Act including the amount of interest, if any, payable on such debt shall be deemed to have been wholly discharged ; and - (b) no Civil Court shall entertain any suit or proceeding against a scheduled debtor for the recovery of such debt or any portion thereof or any interest due thereon : provided that where a suit or proceeding is instituted jointly against a Scheduled debtor and any other person, nothing in this clause shall apply to the maintainability of a suit or proceeding so far as it relates to such other person. These are not self operative provisions. They an dependent for their operation on the existence of certain facts. Under the aforementioned provisions of the Act the defendant debtor could have raised a plea that he. was a scheduled debtor and the debt owned by him to the plaintiff was statutorily deemed to have been wholly discharged and that therefore no civil court could entertain any suit or other proceedings for the recovery of that amount of debt and the appeal had abated under Sec.3 (1) (b) of the act. But be did not raise the plea at the relevant time, i. e. in the appeal before the lower appellate court when the plea was very much available to him. In this background if such a plea is permitted to be raised by the defendant debtor in execution proceeding, it would amount to a negation of the decree passed by the lower appellate court (on 25-7-1979), by which the suit was decreed. It should be noted that the provisions of the Bihar Debt Relief Act are in no way different or special from several other Acts. It should be noted that the provisions of the Bihar Debt Relief Act are in no way different or special from several other Acts. In all such cases the relief can be granted by the courts only after the finding about the existence of certain facts. In the present Act in question, i. e. Bihar Debt Relief Act, the relief conferred by the Act is available only to a certain class of debtors. It cannot be permitted to be argued as there is no finding on the question whether the defendant is a scheduled debtor. Nothing on the record prevented the defendant from raising the plea at the appellate stage. If such a submission is permitted to be advanced at the execution stage in the facts of the present case, it would ignore the fact that the procedure is as much a part of our law as substantive law is and that rights granted by the substantive law have to be worked out in accordance with the procedural law. The question whether the debtor is a "scheduled debtor" or a "small farmer" could only be decided by a civil court governed by the Civil Procedure code. The non-obstante language used by section 3 of the Bihar Debt Relief Act has nothing to do with the procedural rights which guarantee regularity of trial and declaration of parties rights under substantive law. Normally the decision in the suit where a debtor did not raise the plea that he was a scheduled debtor or a small farmer would operate as a res judicata and would prevent the debtor from raising the same question which he might and ought to have raised in the suit in execution. This is the effect of section 11 read with Explanation IV and read with Explanation VII inserted in 1976 of the Civil Procedure Code. This is the effect of section 11 read with Explanation IV and read with Explanation VII inserted in 1976 of the Civil Procedure Code. Even without Explanation VII (inserted in 1976), under Explanation IV to section 11 any matter which ought and might have been made a ground of defence or attack would be deemed to have been a matter constructively and substantially is issue is such a suit and therefore the decision of the civil court in the suit would operate as res judicata not only on the express pleas taken by the defendant and decided by the civil court, but also on such other matters and pleas which ought and might have been made a ground of defence by the defendant. In the facts of the present case, as stated in detail above, the failure on the part of the defendant to take the plea of being a scheduled debtor at the relevant time when the Bihar Debt Relief Act had already come into force, would not permit the debtor now to raise that plea at the execution stage. Law would deem that such a plea was raised and rejected. The decree of the civil court in Money appeal No.29/76, filed by the plaintiffs and allowed on 25-7-1979, in the present case, operates as res judicata and prevents the defendant-debtor from raising the same plea in the execution proceedings, 14. Thus, on the facts of the present case and in view of the well-established principles of law (as already stated above), the defendant debtor had a chance to plead and prove that he was a scheduled debtor in the suit (the appeal being a continuation of the suit ). Though the suit (Money Suit No.117/71) was filed before the Bihar Debt Relief Act, 1976 (Bihar Act 10 of 1977) came into force yet the plea under the Act was available to the defendant in Money Appeal No.29/76, filed by the plaintiff pending before the lower appellate court and disposed of on 25-7-1979, much later than coming into force of Bihar Debt Relief Act, 1976 (which, as already stated above, came into force on 22-1-1977 ). If the suit/appeal had been decreed before the Act had come into force, clearly constructive res judicata would not have applied. If the suit/appeal had been decreed before the Act had come into force, clearly constructive res judicata would not have applied. It would have been then possible for the debtor to raise in the execution proceeding the plea of being a scheduled debtor under the Act because the principles of constructive res judicata would not then have operated against him. But as the suit was decreed on a date subsequent to the coming into force of the act and the defendant-debtor had a chance, but never raised such a plea, it is not open to the defendant-debtor to raise that plea in the execution proceeding. In the facts and circumstances of the present case, as stated above, the doctrine of ought and might therefore does apply in the present case, as the suit was decreed after the commencement of the Act. I hold that the doctrine of constructive res judicata fully applies in the present case. 15. I have already indicated in the early part of the judgment the principles of law as to when an executing court can refuse to execute a decree passed by the court. The principles of law as to when executing court cannot refuse to execute the decree passed by a competent court has also been indicated in the aforesaid paragraphs. I must say the courts must firmly reject indiscriminate pleas of "scheduled debtors", if the pleas of being "scheduled debtors" is not taken and proved at the appropriate stage. Good laws should not be allowed to be put to bad uses. 16. I hold that for the reasons aforesaid the court below, in passing the impugned order dated 7/12/1983, has not only acted illegally in the exercise of its jurisdiction but has also acted with material irregularity. I further hold that the impugned order suffers of jurisdictional error. 17. In the result, for the reasons given above, the application is allowed and the order dated 7/12/1983 holding that the misc. Case No.30/83 filed by the judgment debtor in Execution Case No.5/83 was maintainable, is set aside. However, there will be no order as to costs. (The lines have been underlined by me for emphasis.)Revision allowed.