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The relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J. and I need not set them out in detail here. Suffice it to say that on June 12, 1931, the High Court, Original Side, which is the Court which had passed the decree, transmitted the same for execution to the Asansol Court through -the District Judge of Burdwan and that the Asansol Court thereupon acquired jurisdiction to execute the decree against properties situate within its territorial limits. The application for execution made by the decree-holder which was numbered 296 of 1931 was, however, on February 27, 1932,dismissed for default and on March 11, 1932, the Asansol Court sent to the High Court what in form purported to be a certificate under section 41 of the Code. There is no dispute, however, that the Asansol Court did not return to the High Court the certified copy' of the decree and other documents which had been previously transmitted by the High Court The decree-holder on November24, 1932 filed in the Asansol Court another petition for execution- of the decree against the same judgment debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case. The application 'was registered as Execution Case No. 224 of 1932. The judgment-debtors' contention is that the certificate sent by the Asansol Court to the High Court on March 11, 1932, was and was intended to be in form as well as in substance a certificate under section 41 of the Code, and that thereafter the Asansol Court ceased to have jurisdiction as the executing Court and that as there was no fresh transmission of the decree by the High Court the Asansol court could not entertain Execution Case No. 224 of 1932 and consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court. This contention was rejected by the Subordinate Judge of, the Asansol Court in his judgment delivered on January 30, 1945, in Miscellaneous Case No. 70 of 1941 but found favour with the High Court in its judgment delivered on February 10, 1950, which is now under appeal before us.

The order sheet of Execution Case No. 224 of 1932 has not been printed in extenso but there can be no doubt that this order of the High Court was communicated to the Asansol Court, for it was after this order that the Asansol Court proceeded with the execution 2case and sripur colliery was sold for the first time on June 9, 1933, and the decree-holder purchased the same for Rs. 20,000. This sale of course was eventually set aside, but this order made by the High Court on the Original Side being the Court which passed the decree in Suit No. 1518 of 1923 appears to me to involve and imply, and may well be regarded as in substance amounting to, an order for transmission of the decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure. The Civil Procedure Code does not prescribe arty particular form for an application for transmission of a decree under section 39. Under sub- section (2) of that section the Court can even suo motu send the decree for ,execution to another Court. It is true that Order XXI, rule 6, provides that the Court sending a decree for execution shall send a copy of the decree, a% certifi- cate setting forth that satisfaction of the decree hid not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the' Court executing the decree the certificate referred to in clause (b) does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of Order XXI, rule 90, and as such cannot be made a ground for setting aside a sale in execution. Further, the fact remains that the certified copy of the decree and the certificate of non- satisfaction which had been sent by the High Court 2to the Asansol Court on April 15, 1931, through the District Judge of Burdwan who forwarded the same to the Subordinate Judge at Asansol were still lying on the records of that Court and the sending of another certified copy of the decree and a fresh certificate of non-satisfaction by the High Court would have been nothing more than a formality. In the circumstances, the omission to send those documents over again to the Asansol Court was a mere irregularity which did not affect the question of jurisdiction of the executing Court. In my opinion, after the order made by the High Court on March 27, 1933, had been communicated to the Asansol Court the Asansol. Court became fully seized of jurisdiction as the executing Court and none of the proceedings had thereafter in that Court can be questioned for lack of inherent jurisdiction.

I would, therefore, on this ground alone accept this appeal and concur in the order proposed by my learned brother. GHULAM HASAN J.- This case is illustrative of the difficulties which a decree-holder has to encounter in recovering the money in execution after he has obtained the decree of court. It is one of those cases, by no means rare, in which the execution proceedings in the courts below have dragged on to inordinate lengths and led to consequent waste of public time and expense to the parties. The decree in the present case was passed upon a compromise in Suit No. 1518 of 1923 on the original :side of the Calcutta High Court as long ago as June 25, 1923, in favour of one Nagarmull Rajghoria against Pran Krishna Chatterjee and 5 others, hereinafter referred to as the Chatterjees. The decree was for a sum of Rs. 75,000 with interest at twelve per cent. per annum with quarterly rests. The Chatterjees hypothecated their Kbradauga colliery as security for the payment of the decretal amount. Subsequent to this decree the Chatterjees entered into an agreement ,With one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24, 1924, appointing the latter as Managing Agent of the aforesaid colliery whereby he became- entitled to receive royalty of another colliery called Sripur colliery. The decree was adjusted on March 18, 1924, by making Mukherjee liable as surety and by the Chatterjees charging their Sripur colliery as additional security. The hypothecated properties were situate at Asansol and Nagarmull obtained an order from the High Court for permission to execute the decree at Asansol with the direction that a certified copy of the decree, a copy of the order of transmission and a certificate of partial satisfaction of the decree should be transferred to the court of the Subordinate Judge at Asansol.' This order was passed on April 15, 1931, and the three documents aforementioned were sent to the transferee court at Asansol through the District Judge, Burdwan on June 12, 1931. (Order XXI, rule 6, Civil Procedure code.) On August 20, 1931, Nagarmull filed his first appli- cation for execution of the decree by sale of Sripur colliery. The execution case is numbered as 296 of 1931. Notices under Order XXI, rule 22, rule 64 and rule 66, of the Civil Procedure Code were issued and served on various dates. The case was fixed for February 16,'1932. On this date Nagarmull applied for time to prove service of the notices and the case was adjourned to February 23 1932. He again applied for time on that date and the case was adjourned to February 27, 1932. On this latter date Nagarmull was again not ready and asked for more time. But this was refused, and the execution case was dismissed for default without any amount being realized under the decree. The transferee court sent to the High Court what purported to be a certificate under section 41 of the Civil Procedure Code, stating that the execution case was dismissed for default on February 27, 1932. Neither the copy of the decree, nor any covering letter as required by the rules of the High Court was sent along with the certificate. The certificate was received by the High Court on March 11, 1932.

(2) A.I.R. 1938 Patna 427.

was precluded from raising the plea of jurisdiction of the court to execute the decree: Mukherjee preferred an appeal to the High Court. The matter came up before Harries C. J. and Sarkar J. The learned Chief Justice held that the Asansol Court not only sent what purported to be a certificate under section 41 of the Civil Procedure Code to the High Court, but intended such certificate to be a certificate of non-satisfaction. He did not agree with the Subordinate Judge that the document was not intended to be a certificate and was merely an intimation that the first attempt at execution' had failed. In the view of the learned Chief Justice there was no need for the Court at Asansol to send any intimation at all. The learned Chief Justice agreed that upon a true construction of section 41, failure to execute the decree at the first attempt for non- appearance of the decree-holder was not the total failure to, execute the decree as contemplated in that section. He, however, held that the fact that the certificate was sent when it should not have been sent cannot affect the question if, as he held, the certificate was intended to be a certificate of non-satisfaction. The learned Chief Justice referred to a number of authorities in support of his conclusion. He accordingly held that the Asansol Court had ceased to have jurisdiction to execute the decree and was not entitled to entertain the second application for execution. Upon the question of res judicata the learned Chief Justice observed that " a judgment delivered by a Court not competent to deliver it cannot operate as res judicata and the order of the Subordinate Judge of Asansol, being wholly without jurisdiction, cannot be relied upon to found a defence upon the principle of res judicata. " He went on to say: "It is true that the appellant could and should have raised the question in the second execution case that the Asansol Court had no jurisdiction' in the absence of a certificate of non-satisfaction from the High Court to entertain the application. But in my view though this, point was neither made nor pressed, these orders of the learned Subordinate Judge in the second execution application cannot be urged-as a bar to the present application under the doctrine of res judicata. It is true that section 11 of the Code of Civil Procedure does not apply to execution proceedings, but it has been held by their Lordships of the Privy Council that the principles of the law relating to resjudicata do apply to execution proceedings and Mr. Atul Gupta has urged that the present application is barred by res judicata.............. He drew a' distinction between the case of an irregular assumption of jurisdiction and want of inherent jurisdiction and holding that the order of the Subordinate Judge at Asansol fell under the latter category, he came to the conclusion that the order is wholly null and void and cannot be pleaded in bar of the application on the principle of res judicata.