JUDGMENT : Apurba Sinha Ray, J. 1. The matter relates to execution of a transferred decree from Hon’ble High Court at Delhi. 2. The instant application has been filed from the side of the KMC under Section 47 Code of Civil Procedure, 1908 contending that the decree passed was in fact a nullity since the KMC was not made a party to the proceeding. It is further contended that as per Section 587 of the Kolkata Municipal Corporation Act, 1980 (the Act, 1980 in short hereinafter) no suit is maintainable against any municipal authority or any officer or employee of the Corporation in respect of anything done lawfully and in good faith with due care and attention under the Act, 1980 or the rules and regulation made thereunder. 3. The learned counsel appearing for the KMC Mr. Dhruba Ghosh has also contended that Section 586 of the Act, 1980 provides that no suit shall be instituted in any court against any municipal authority or qany officer or employee of the corporation without serving necessary notice in writing to the concerned office of the KMC. 4. It appears that though the decree-holder instituted the relevant suit against three of its officers, neither the KMC was made a party to the proceeding nor any notice was served upon the KMC under Section 586 of the Act, 1980. As, the decree has been passed without impleading the necessary party like KMC and without serving notice to the office of the corporation, the decree was passed without jurisdiction and therefore it is a nullity. 5. The learned counsel on behalf of the decree-holder Mr. Rupak Ghosh has submitted that the decree was appealed against and such appeal was filed by the KMC before the Hon’ble Division Bench in High Court, Delhi and all these points were taken up during the hearing of the appeal but such pleas of the KMC were rejected on the ground that it would not cause any prejudice to the KMC and such technicalities on the point of law were not accepted by the Division Bench. The matter was again taken to the Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the special leave application. The matter was again taken to the Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the special leave application. The learned counsel has further submitted that the KMC has already paid the decreetal amount and this execution proceeding is pending for interest accrued upon the decreetal amount and most interestingly 25 lakhs against such outstanding dues have been paid by the KMC. The instant proceeding under Section 47 CPC has been brought to frustrate the decree passed against the KMC and also to drag the proceeding as long as the KMC can. Learned counsel has further contended that the plea of constructive res judicata squarely applicable in this case. 6. In reply the learned counsel appearing for the judgment-debtor has submitted that the definition of decree as found in Section 2(2) of Code of Civil Procedure shows that it means the formal expression of an adjudication which conclusively determines the rights of the parties with regard to or any of the matters in controversy in the suit. According to him as the KMC was not made a party it could not agitate the relevant issues before the Court at Delhi. Interestingly, the KMC was made parties in the instant execution proceeding in the year 2022. As the requirements of Section 586 and 587 of KMC Act were not complied with, the decree passed by the Court at Delhi and confirmed by the Division Bench of the High Court at Delhi is in fact a nullity and as such the instant execution proceeding cannot be proceeded with. 7. The learned counsel for the judgment-debtor/petitioner has submitted an unreported decision of the Hon’ble Supreme Court passed in Civil Appeal No. 9695 of 2013 in support of his contention that the plea of constructive res judicata is not applicable in this case. Decisions with Reasons 8. It is settled law that executing court cannot go beyond the decree passed except when there is a jurisdictional error or when the decree is a nullity. Decisions with Reasons 8. It is settled law that executing court cannot go beyond the decree passed except when there is a jurisdictional error or when the decree is a nullity. In this case resistance to the execution of the impugned decree was made from the KMC on the grounds that as the KMC being the appropriate authority, no suit can be instituted against its officers without making the KMC a party to such suit or proceeding and further that no notice as per requirements of Section 586 of the KMC Act, 1980 (Act 1980 in short) was ever served upon the office of the KMC and therefore the decree is a nullity. 9. Section 586 and 587 of the Act, 1980 may be quoted as hereunder:- 586. Notice, limitation and tender of amends in suits against the Corporation, etc. (1) No suit shall be instituted in any court having jurisdiction against any municipal authority or any officer or employee of the Corporation or any person acting under the direction of any municipal authority or any officer or employee of the Corporation in respect of any act done, or purporting to be done under this Act or the rules or the regulations made thereunder, until the expiration of one month next after a notice in writing has been delivered or left at the office of such authority or at the office or the residence of such office or employee or person, stating- (a) the cause of action, (b) the name and residence of the intending plaintiff, and (c) the relief which such plaintiff claims. (2) Every such suit shall be commenced within four months next after accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by sub-section (1). (3) If the municipal authority, at the office of which, or the officer or the employee of the Corporation or the person acting under the direction of any municipal authority or any officer or employee of the Corporation, at the office or the residence of whom, a notice has been delivered or left under sub- section (1), satisfies the court having jurisdiction that the relief claimed was tendered to the plaintiff before the institution of the suit, the suit shall be dismissed. (4) Nothing in the foregoing sub-sections shall apply to any suit instituted under section 38 of the Specific Relief Act, 1963 (47 of 1963). 587. Indemnity. No suits shall be maintainable against any municipal authority or any officer or employee of the Corporation or any person acting under the direction of any municipal authority or any officer or employee of the Corporation or of a Magistrate in respect of anything done lawfully and in good faith and with due care and attention under this Act or the rules or the regulations made thereunder.” 10. It appears that in a Civil Suit (original suit) being Suit No. 1090 of 2013 the Hon’ble High Court at Delhi decreed the suit exparte in terms of the prayers (a) and (b) of the plaint and was further pleased to impose a litigation cost of Rs.1 lakh against the defendants therein. Subsequently, an application under Order 9 Rule 13 CPC was filed before the Hon’ble High Court at Delhi and by decision dated 5th October, 2018 the learned Single judge of the Hon’ble High Court at Delhi was dismissed such application. The said decree was sent/transferred to this court for execution. However, the record further shows that an appeal was preferred before the Hon’ble Division Bench by the KMC and by order dated 14.03.2019 the exparte decree was set aside as per settlement reached between the parties on the following terms:- “The parties have agreed as under: (i) The impugned order dated 17.09.2015 is set aside. (ii) The plaint shall be returned to enable the respondent/plaintiff to file the same in the appropriate court of jurisdiction. (iii) The Bank account which has been attached in the sum of Rs.52,15,317/- will be converted into a Fixed Deposit Receipt (FDR) in the name of the respondent No. 1 and deposited with the Registrar General of the Calcutta High Court. The FDR will be made within four weeks. (iv) In case the plaintiff/respondent No. 1 succeeds, the amount accrued together with interest shall be released in favour of the respondent No. 1 together with whatever claim he may have further as per the decree, if so passed. 7. Counsel for the parties submit that they would not take unnecessary adjournments or delay the matter to enable the appropriate court to decide the matter expeditiously. 8. With the above agreed terms, the appeal is disposed of.” 11. 7. Counsel for the parties submit that they would not take unnecessary adjournments or delay the matter to enable the appropriate court to decide the matter expeditiously. 8. With the above agreed terms, the appeal is disposed of.” 11. But as the KMC did not comply with the terms and conditions of the consent order, recalling application was filed before the Hon’ble Division Bench and accordingly, the said order dated 14.03.2019 was recalled by an order dated August 22, 2019. However in the relevant appeal before the Hon’ble Division Bench in the High Court at Delhi, the KMC has taken the plea that the KMC was not made party and notice as per requirement under Section 586 of the Act, 1980 was not served upon and therefore the decree passed was a nullity. The Hon’ble Division Bench has been pleased to observe in paras 27, 28, 29, 30 and 32 of the relevant judgment as hereunder:- “27. Section 586 of the Kolkata Municipal Corporation Act, 1980 reads as under:- 586. Notice, limitation and tender of amends in suits against the Corporation, etc.- (1) No suit shall be instituted in any court having jurisdiction against any municipal authority or any officer or employee of the Corporation or any person acting under the direction of any municipal authority or any officer or employee of the Corporation in respect of any act done, or purporting to be done under this Act or the rules or the regulations made thereunder, until the expiration of one month next after a notice in writing has been delivered or left at the office of such authority or at the office or the residence of such office or employee or person, stating- (a) the cause of action, (b) the name and residence of the intending plaintiff, and (c) the relief which such plaintiff claims. (2) Every such suit shall be commenced within four months next after accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by sub-section (1). (2) Every such suit shall be commenced within four months next after accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by sub-section (1). (3) If the municipal authority, at the office of which, or the officer or the employee of the Corporation or the person acting under the direction of any municipal authority or any officer or employee of the Corporation, at the office or the residence of whom, a notice has been delivered or left under sub-section (1), satisfies the court having jurisdiction that the relief claimed was tendered to the plaintiff before the institution of the suit, the suit shall be dismissed. (4) Nothing in the foregoing sub-section shall apply to any suit instituted under section 38 of the Specific Relief Act, 1963 (47 of 1963) 28. It is apparent from bare reading of section 586 that no suit shall be instituted in any court until expiration of one month next after a notice in writing has been delivered or left at the office of such authority or at the office or the residence of such officer or employee or person. The respondent no. 1 in plaint and PW1 in affidavit Ex. PW1/1 mentioned that the respondent no. 1 sent a legal notice dated 05.09.2012 Ex. PW1/W to the officers of the appellant no. 1 who were arrayed as defendants in original suit which was not replied on behalf of the appellants. The suit was filed in year of 2013. The issuance and service of legal notice dated 05.09.2012 Ex.PW1/W is not disputed on behalf of the appellants. There may be irregularity in notice Ex. PW1/W but it is established that the respondent no. 1 has complied with requirement of section 586 of the Act. The suit was not bad for want of notice under section 586 of the Act. 29. The learned Senior Counsel for the appellants argued that the appellant no. 1 was not impleaded as necessary party as per section 4(2) of the Kolkata Municipal Corporation Act, 1980. Section 4(2) of the Act reads as under:- 4. The Corporation.- (1) x x x x x x (2) The Corporation shall be a body corporate with perpetual succession and a common seal, and may by its name sue and be sued. (3) x x x x x x x 30. Section 4(2) of the Act reads as under:- 4. The Corporation.- (1) x x x x x x (2) The Corporation shall be a body corporate with perpetual succession and a common seal, and may by its name sue and be sued. (3) x x x x x x x 30. It is correct that the respondent no. 1 in plaint did not implead the appellant no. 1 as one of the necessary parties as per section 4(2) of the Act. The respondent no. 1 initially impleaded the respondent no. 2/defendant no. 1/Director General (Town Planning)/, the defendant no. 2/N. B. Basu, the defendant no. 3/P.K.Dass and the defendant no. 4/Sankar Gosh who were officers of the appellant no. 1 as necessary parties. The respondent no. 1 vide statement dated 28.04.2014 made before the Joint Registrar preferred to delete the defendants no. 3 and 4 from array of the parties. The respondent no. 1 was required to sue the appellant no. 1 in its own name as per section 4(2) of the Act but the respondent no. 1 impleaded those officers of the appellant no. 1 who were directly responsible, for management of affairs of the respondent no. 1. The non-impleading of the appellant no. 1 as necessary party may be an irregularity but it is not an illegality fatal to the case of the respondent no. 1 as no prejudice caused to the appellant no. 1. ……………… 32. The learned Single Judge in judgment and decree dated 17.09.2015 held that there is nothing on record which could suggest that the prayers sought in the plaint could not be granted as the receipt of chairs was not rebutted and request for installation of the chairs at Sarat Sadan, Behala was acknowledgement of the acceptable and good quality of the chairs; the letter dated 17.04.2013 was an afterthought and an endeavour to escape the acknowledged liability to pay the sale consideration. We are of the opinion that the learned Single Judge has considered all relevant issues before passing the judgment and decree dated 17.09.2015 which does not call for any interference.” 12. It further appears that the KMC has moved before the Hon’ble Supreme Court by a special leave application but the Hon’ble Supreme Court dismissed the said special leave application. 13. It further appears that the KMC has moved before the Hon’ble Supreme Court by a special leave application but the Hon’ble Supreme Court dismissed the said special leave application. 13. As the KMC’s pleas for not impleading it as a necessary party does not find favour in the Hon’ble Division Bench, this Court being an executing court cannot act as an appellate forum over the Division Bench of the Hon’ble High Court at Delhi. The KMC was not able to set aside such observation of the Division Bench in the special leave application filed by it and therefore such plea being adjudicated, cannot be taken up in this execution proceeding once again. 14. In the case of Alka Gupta Vs. Narender Kumar Gupta (2010) 10 SCC 141 the principles of res judicata and constructive res judicata have been discussed. But as the Hon’ble Division Bench has already pointed out that non-impleading of the KMC in the suit does not cause prejudice to the corporation and further as the requirement of issuance of notice under Section 586 is a matter of technicalities and such observation being not set aside by the highest forum of the country, I think that the instant application under 47 CPC is completely merit less. 15. Accordingly, the GA 4 of 2023 stands dismissed with a cost assessed at Rs. 10,000/- (Rupee Ten Thousand) to be paid by the KMC to the decree holder within a fort night from the date, failing which the decree holder is at liberty to take appropriate steps against KMC. 16. The judgment-debtor KMC is directed to pay the due amount under the decree to the decree-holder within 15 days, in default coercive steps will follow. List the matter on 26th February, 2024. 17. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties on compliance of all necessary formalities.