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1. This is an appeal from an order of a learned Subordinate Judge of Asansol, dismissing an application to set aside a sale. The application was made under Sections 47 and 151, Civil P. C.

2. To appreciate the points in issue it will be necessary to state the facts in some detail.

3. Nagarmull Rajgharia, now deceased, whose personal representative has been brought on the record as respondent in his stead, obtained a decree in Suit No. 1518 of 1923 on the Original Side of this Court. The decree was eventually transferred for execution by this Court to the Court of the Subordinate Judge at Asansol through the District Judge of Burdwan. A certificate of non-satisfaction under Section 41 Civil P. C., was sent by this Court which was transmitted to the Asansol Court. The decree-holder Nagarmull Rajgharia commenced Money Execution Case No. 296 of 1931 in the Court of the Subordinate Judge at Asansol, but that case was eventually dismissed for default on 27th February 1932. The Court at Asansol sent what purported to be a certificate of non-satisfaction under Section 41, Civil P. C., to this Court and it is to be observed that the decree was never again transferred to the Court at Asansol for execution. Later, however, the decree-holder made another application for execution at Asansol and Money Execution case No. 224 of 1932 was commenced. In the course of that execution the decree-holder purchased the Sripur Colliery on 9th June 1933, but the sale was set aside on 29th January 1934 on an application by one of the judgment-debtors, the appellant in this appeal, under Order 21, Rule 90, Civil P. C. A certificate purporting to be a certificate under Section 41, Civil P. C., was sent by the Asansol Court to the High Court. The decree-holder appealed against this order setting aside the sale, but his appeal was dismissed by this Court. The records of Misc. case No. 224 of 1932 were returned to this Court by the Asansol Court on 17th September 1935 and the execution case was revived.

6. In order to ascertain the amount due to the decree-holder, Nagarmall Ragharia in suit No. 1518 of 1923 the appellant instructed his attorney to search the records of that suit and it is said that as a result of that search the appellant came to know for the first time on 23rd August 1940 that the Asansol Court had sent a certificate of non-satisfaction in Honey Execution case No. 296 of 1931 to this Court and that no fresh certificate of non-satisfaction had been sent by this Court to the Court at Asansol. The appellant then realised for the first time that the Court at Asansol had no jurisdiction to entertain the second execution case, namely, Money Execution case No. 224 of 1932 and that all the proceedings in that case were null and void as they were without jurisdiction. It seems that an application to review the order of the High Court dismissing the application to set aside the sale for Rs. 2,50,000 was made but was rejected. But no point was made on this matter and it does not appear when that application was made.

7. As the appellant alleged that the Court at Asansol had no jurisdiction to entertain the second application for execution and therefore no jurisdiction to order or conduct a sale, an application was made to the Court at Asansol under Sections 47 and 151, Civil P. C., praying that the sale be set aside as it was a sale without jurisdiction.

8. The decree-holder objected and contended that the Court at Asansol had jurisdiction to entertain the proceedings and in the alternative, if it had no jurisdiction, the appellant having failed to press the point in the proceedings was now barred by the doctrine of res judicata from contending that the Court had no jurisdiction.

10. In the second place the Court was of opinion that this question of jurisdiction should have been raised and pressed. But as that was not done the Court could not later be asked to re-agitate the matter and hold that it had no jurisdiction. In short it held that the judgment-debtor appellant was barred by the doctrine of res judicata from raising the point. 10a. In the Court of the Subordinate Judge there seems to have been some discussion as to whether or not there was on the file in the Court at Asansol a certificate of non-satisfaction from this Court when the second execution case was started. Allegations were made by the appellant that the documents were abstracted from the record in the High Court and placed in the record of the execution case at Asansol. It is unnecessary, however, to consider this question because learned advocate for the respondent conceded before us that no fresh certificate of non-satisfaction was sent by the High Court to the Court of Asansol after receipt by the High Court of the certificate under Section 41 despatched by the Asansol Court to the High Court and received by the latter on 11th March 1932. It will be seen therefore that no fresh certificate of non-satisfaction was sent by this Court to Asansol which would give that Court jurisdiction. The respondent's case is that the Asansol Court had jurisdiction throughout and had not sent any certificate under Section 41 which would deprive that Court of its jurisdiction.