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40. The latest case of the Calcutta High Court is a Full Bench decision in Union of India v. Kazi Siddique Ahmad, AIR 1961 Cal 92. The question of territorial jurisdiction of the court was not raised by the defendant in the suit, and a contested decree was passed against him. In execution, however, he pleaded that the decree was a nullity because the court which passed it had no territorial jurisdiction. Their Lordships held that he was not entitled to raise the question for the first time in execution. There are some observations in the judgment to the effect that the executing court can look into the decree and if the decree is ambiguous, into the pleadings in order to find out whether there was a lack of jurisdiction in the court which passed the decree. I respectfully accept this proposition in so far as it is applicable to a case where a lack of inherent jurisdiction is pleaded; but an alleged lack of territorial jurisdiction does not stand on that footing.

"in view of the previous decision in the mortgage suit that khata No. 106 is not the raiyati land of the judgment-debtors, it is not open to the respondents to challenge the saleabifity of the land, and the decision operates as res judicata and is binding upon them."

If I may say so with respect, the decision is perfectly correct; but I find it difficult to accept some observatious of my learned brother Kanhaiya Singh, J. in the course of his judgment in that case. He has agreed with the principle laid down by Kulwant Sahay, J. in Rup Nath Mandal's case, ILR 7 Pat 178 : (AIR 1928 Pat 227) which I have already held to be wrong. He seems to have expressed the view that, where there is a prohibition against the sale of a certain class of land, a contested decree for sale of land of that class will operate as res judicata but an ex parte decree will not. In my judgment, this is not a sound principle. Even when a decree is passed ex parte, it must be deemed to have decided against the defendants those facts which, if raised and established would have induced the Court to dismiss the suit or to pass a different order.

A Full Bench of the Allahabad High Court in Katwari v. Sita Ram Tewari, AIR 1921 AH 118 has held:-

"No doubt it was not open to the judgment-debtor to contest the validity of the decree which was passed against him but it was open to him to say to the Court that as the law contains a mandatory provision which precludes a Court executing a decree from selling an occupancy holding the Court was bound to carry out the provisions of the law and not to act in violation of those provisions. In my opinion, in view of the provisions of Section 20 a Court executing a decree cannot order an occupancy holding to be sold, no matter whether the decree is a decree directing a sale of the holding Or is a simple money decree."

70. In the light and with the help of the principles of law as laid down in several authorities referred to above, my considered and concluded opinion in regard to the conflict between the principles of res judicata which are undoubtedly based upon public policy and the statutory prohibition of alienation of properties founded on public policy, which opinion, according to me, is the most harmonious one, is--

(1) If in a suit asking for a decree for sale or in the execution proceeding asking for an order for sale of the property, alienation of which is prohibited by statute on grounds of public policy, the defendant or the judgment-debtor appears and contests on questions of fact or law as to the interpretation or application of the statutory prohibition and, in spite of his contest, a decree or an order for sale is made, the decree or the order passed for sale is not a nullity and the point whether Such decree or order could be so passed in spite of the prohibition will be barred by the principles of res judicata in a subsequent proceeding or suit.