VISWANATHA SASTRI, J.

( 1 ) THE suit was brought for a permanent injunction restraining the dc fendants from interfering with the possession and enjoyment of certain carpenter service inam lands held by the family of plaintiffs 1 to 3. The lands were mortgaged in the plaintiffs to the first defendant who filed a suit on the mortgage, obtained a decree for sale and had the lands sold through Court at an auction sale at which he was the purchaser. Thereafter he sold the lands to the second defendant on whose contestfthe suit was dismissed by the Courts below as being barred by res judicata. The plaintiffs advocate contends that notwithstanding the mortgage, the decree thereon and the Courts sale that followed, it is open to them to plead that the service inam lands were inalienable and that the mortgage decree for sale and the court sale of such lands were null and void. Both sides have cited a large number of cases.

( 2 ) AN alienation of property may be prohibited either by statute or for reasons of public policy, that is to say, under what may be called the common law of India. A statutory prohibition of alienation might have been enacted on grounds of public policy or in order to protect a particular class of persons. Section 5 of Madras Act iii of 1895 and section 4 of Madras Act II of 1904 are instances of the former while section 60 (1) (c) of the Civil Procedure Code is an instance of the latter. The distinction between the two types of cases is that in the former case an alienation contrary to the tatute will be void and can be questioned by the alienor or his heirs while in the latter case a person may waive the benefit or the protection of the statute and be bound by his alienation. The question whethei the prohibition of the statute falls under the first or second category will have to be solved with reference to the terms of the statute and its object or purpose. If the prohibition has some object of public policy, it has to be enforced strictly. The position would be the same if an alienation of certain property is prohibited under the general law on grounds of public policy lands forming the emoluments of offices of a public nature cannot be alienated by 1 he holder by way of sale, gift or mortgage or sold in execution o{ a decree against him. This had been recognised as a rule of general law based on public policy in connection with inams granted for services in a temple, in Lakshmanasivamy Naidu v. Ranvamma, (1902) I. L. R. 26 Mad. 31. Anjaneyulu v. Sri Venugopal Rice Mill Ltd. , tenali, (1922) 42 M. L J. 477 : I. L. R. 45 Mad. 620 (F. B. ). Sundaraiaja Dikshitulu v. Seshadri Dikshitulu, (1927) 54 M. L. J. 76. Ramanathan Chettiar v. Kalidasa Kavundan, (1936) 71 M. L. J. 398. Adinmayana. Chetty v. Chengiah, A. I. R. 1937 Mad. 918. and Dasabhadam inams in Ramakrishnamma v. Venkatasubbaiah, (1934) 68 M. L. J. 46; I. L. R. 58 Mad. 389. Lakshmadu v. Ramudu, I. L. R. (1940) Mad. 123. Kotayya v. Subbarayudu, (1956) An. W. R. 739 : 1956 A. L. T. 99. Section 5 of Madras Act III of 1895 which prohibits voluntary alienation as well as an attachment and Court sale of lands forming the emoluments of village offices, one of which is that of a village carpenter is based on considerations of public policy in order to prevent the dissociation from the office, of the emoluments attached thereto, for such dissociation impairs the efficiency of the service to be rendered by the carpenter to the villagers and thus injuriously affects the interests of a section of the public. See Raja of Vizianagaram v. Dantivada chelliah, (1904) 14 M. L. J. 468 : I. L. R. 28 Mad. 84. Anjaneyulu v. Sri Venugopal Rice mill, Ltd. , Swami v. Seethaiah, (1935) 70 M. L. J. 366 ; I. L. R. 59 Mad. 354 (F. B. ).

( 3 ) WHAT is to happen, if, without any objection being raised on the score of the land being village service inam a decree for sale of the land has been passed in a suit to which the holder of the inam is a party ? Is the Court bound to execute the decree and is the judgment-debtor precluded from objecting to the execution sale by proving that the land sought to be sold is in fact service inam land, though it does not so appear from the decree? In Raja of Vizianagaram v. Dantivada Chellaiah, the Court held that the objection to the deciee could be raised at the stage of execution. The ratu decidendi was this :"the prohibition (under section 5 of Act III of 1895) must be taken to be absolute and to deprive civil Courts of all jurisdiction to give a direction for sale of such inam propcity as that in question. And the decree in so far as the direction for sale goes was altogether ultra vires and incompetent to confer the right intended and Courts are bound, on the matter coming to their notice, to abstain from enforcing the direction ".

( 4 ) LAKSHMANASWAMY Naidu v. Rangamma, was a case of a compromise decree for the sale of a golla office in a temple together with the emoluments. It was held thai a sale in execution of the decree would be opposed to public policy and ought not to be recognised or enforced by the Courts. The Court rested its decision also on the ground that the compromise was unlawful and the decree, in so far as it embodied its terms, was inoperative and could not be enforced. In Raja of kalatiasti v. Venkatadri Rao, (1927) 53 M. L. J, 533 -. I. L. R. 50 Mad. 897 it was held that even if a decree for the sale of an partible estate had been passed without objection, the objection that section 6 of the Madras Impartible Estates Act (II of 1904) prohibited the sale could be taken in execution and should be upheld by the Court inasmuch as the execution of the decree would involve the infraction of a provision of law enacted in the public interest. To the same effect was an earlier decision of the Madras High Court in Raja Ramachandrudu v. Akella Venkata Laksnmi Narayana, (1918) 37 M. L. J. 65. though there the objection was taken to passing a final decree for sale of an impartible estate. Annamalai Chettiar v. Kumarappan Srirangachariar, (1937) 71 M. L. J. 867 : I. L. R. (1937) Mad. 339. was a case of a mortgage decree for the sale of temple service inam lands, whose alienation, though not prohibited by statute, was opposed to public policy according to the uniform course of decisions in Madras. Burn and Lakshmana Rao, JJ. , held reversing Pandrang row, J. , and agreeing with an earlier decision of Pakenham Walsh, J. , in Ranga iyer v. Sundararaja lyengar, (1932) 37 LAV. 358. that the executing Court could not go behind the decree and entertain an objection to its validity but must execute the decree as it stood.

( 5 ) THE learned Judges rested their decision on these grounds : (1) There was no want of jurisdiction in the Court which passed the decree apparent on its face. (2) The prohibition against alienation was not statutory. (3) The executing Court had no power to go into disputed questions of fact which, if proved, would take away the jurisdiction of the Court which passed the decree to order sale. The learned Judges were evidently prepared to make an exception where the decree for sale contravened a statutory prohibition like section 5 of the Madras Act III of 1895 or section 6 of Madras Act II of 1904, for it was on this ground that they distinguished Raja of Vizianagaram v. Dantivada Chellaiah, (1984) 14 M. L. J. 468 : I. L. R. 8 Mad. 84. and Rajah of Kalahasti v. Venkatadri Rao, (1927) 53 M. L. J. 533 : I. L. R. 50 Mad. 897 I humbly venture to think that where the alienation of service inam. lands is prohibited on grounds of public policy, either under the general law or by statute, the position is the same and in either case it is the duty of the executing Court on being satisfied that the lands are service inams and therefore not saleable, to stay its hand. I find it difficult to accept the view that the want of jurisdiction of the Court to direct a sale of the land on the ground of its being a service inam must appear on the face of the decree. Courts seldom pass decrees reciting therein their incompetency or facts showing it. In most of the cases cited above, the decree for sale, preliminary or final, did not contain within itself anything to show that the land was inalienable and yet it was held that the Court had no power to order the sale. The learned Judges rely on the following observation of Page, C. J. , in S. A. Nathan v. S. R. Samson, (1931) I. L. R. 9 R. 480 (F. B. ). "it is against public policy and good sense alike that the Court charged with the execution of a decree should be allowed to question its validity ".

( 6 ) REFERRING to an objection on the ground of want of jurisdiction to pass the decree sought to be executed, Page. C. J. , in the same case observed :"if the fact is that the decretal Court had no jurisdiction to pass the decree. . . . . . what difference does it make in principle or as a matter of commonsense whether the executing Court ascertains that fact by perusing the decree or after hearing evidence or holding an enquiry? In my opinion, none whatever. If there was a want of jurisdiction in the decretal Court, the fact exists and remains whether the absence of jurisdiction is apparent or not ". Pandrang Row, J. , expressed the same view in Srifangachariar v. Annamalai chettiar, (1935) 41 L. W. 485. which was reversed on appeal by Burn and Lakshman Rao, JJ. The learned Judges appear to hold that if it is admitted in the course of the execution proceedings that the lands directed to be sold by the decree are service inam lands, the executing Court cannot proceed to sell the lands but if this fact is disputed the executing Court is incompetent to hold an enquiry to find out the truth. I am in respectful agreement with the opinion of Venkataramana Rao, J. , in adinarayana v. Gnengaiah, A. I. R. 1937 Mad. 918. that where alienation of service inam lands is prohibited on grounds of public policy, either by a statute or under the general law, the executing Court can inquire into the matter and refuse to execute a decree which directs such sale. The objection to the sale of carpenter service inam lands rests in a statutory prohibition and falls within the exception recognised by Burn and lakshman Row, JJ. , to the general rule that an executing Court cannot inquire into the, validity of the decree.

( 7 ) IN this case, the service inam lands have been sold by Court in execution final decree for sale and the sale has also been confirmed. It is argued for the respondent that in such circumstances the holders of the service inam arc precluded from disputing the validity of the sale on the ground of its inalienability. Reliance was placed on the decisions of Venkatasubba Row and Madhavan nair, JJ. , in Somasundaram v. Kondayya, (1925) 49 M. L. J. 401, 407. followed by King, J. , in Venkatappadu v. Appalaswami, (1940) 2 M. L. J. 487. and by Madhavan Nair, J. , in Bullayya v. Subbayya, A. I. R. 1933 Mad. 130. These cases support the contention of the respondent. The reasoning of the learned Judges. is louncl in the judgment of Venkatasubba Row, J. , in Somasundaram v. Kondayya :"we are not here concerned with the true facts of the case but only with the result of certain proceedings. Is the defendant (the holder of the service inam) to be permitted to plead that the land was inalienable at the time of the Court sale ? The effect of the order confirming the sale is that the land can be alienated. The order is conclusive, and it must be deemed that there is an ad-judication that the property can be sold".

( 8 ) ACCORDING to this view the order confirming a sale is an adjudication that operates as res judicata and precludes the judgment-debtor from pleading that the land was inalienable in subsequent proceedings. The Madras High Court appears to have departed from this view without referring to these decisions. In Ramakrishnamma v. Venkatasubbaiah, (1934) 68 M. L. J. 46 : I. L. R. 58 Mad. 889 where a dasabhandam inam was sold in execution of a decree against the inamdar, it was held by a Division Bench that as the land was inalienable it could not have been validly sold in execution. Though the facts is are not fully reported, it appears that the validity of the sale came in question in a suit by the purchaser for possession which the inamdar successfully resisted in Lakshmadu v. Ramudu, I. L. R. (1940) Mad. 123, another Division Bench held that a sale of dasabhandam mam lands held and confirmed in execution of a mortgage decree obtained against the inamdar was a nullity and could be disregarded by the inamdar s legal presentatives though they were parties to the execution proceedings. This case was also a suit for recovery of possession. No reference was made in these two cases to the decision in Somasundaram v. Kondayya, and the question whether the failure of the judgment-debtor to raise an objection on the ground of non-alienability before the sale operates as res judicata against him if the same point was raised after confirmation of the sale was not expressly decided. It is however implicit in these two cases that there would be no bar of res judiciata. I do not see how the confirmation of the execution sale affects the issue. If the rule of constructive res judicata applies, then the decree for sale should conclude the matter. A Court sale is often held against the wishes of the judgment-debtor. He makes no representation as to title and there is no warranty of title in a Court sale. The Court is bound to confirm a sale if the sale is not set aside under Order 21, rule 89, or 90, Civil procedure Code. If the decree for sale is ultra vires or without jurisdiction, then the court sale falls with it. It is possible that Venkatasubba Row, J. , rested his conclusion on the ground of estoppel though the judgment is not clear on ths point.

( 9 ) THERE can be no estoppel against a statute and estoppel cannot supersede the law of the land. Though no cases were cited, this proposition is supported by ample authority. Mohammad Maqsood v. Hoshiar Singh, I. L. R. (1945) All. 394. Woomesh v. Baroda, (1900) I. L. R. 28 Gal. 170 manohar v. Baldeo, (1927) I. L. R. 49 All. 918, 953. In the last case the Court observed that when the law for bade a certain thing being done in a suit, no amount of failure by the defendant in a previous suit to plead the positive bar created by the Legislature will prevent its being taken up in a subsequent suit. As pointed out in Chidambara Chettiar v. Vythilinga Padayachi, (1914) I. L. R. 38 Mad. 519. . "no estoppel can be pleaded against directions and prohibitions enacted by the statute law and against the rights accruing to any party by reason of such directions and prohibitions. " see also Sitharam v. Krishnaswami, (1914) 25 M. L. J. 264 : I. L. R. 38 Mad. 574. 381. If a service inam land is alienated and the inam is subsequently enfranchised, it has been consistently held that the alienee would not get a title on the principle of title feeding the estoppel. Sannamma v. Radhabhai, (1917) 34 M. L. J. 17 : I. L. R. 41 Mad. 118 (F. B. ).

( 10 ) THE respondent relies on Ckanganlal Kistioredas v. Bai Harkha, I. L. R. (1909) 33 Bom. 479. where it was held that a plea of estoppel by res judicata can prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute. There the question related to the validity of an alienation in contravention of section 3 of the Bhagdari Act. The argument of the respondent in substance is this : It is not until the fact that the lands are service inam lands, is established that the question of the operation of section 5 of Madras Act III of 1895 arises and it is at the initial stage of establishing this fact that the bar of res judicata by reason of the omission to raise the plea of inalienability at any stage of the prior proceedings arises. The Court had personal pecuniary and territorial jurisdiction. Its want of jurisdiction to decree a sale of the land could be discovered only if it was established that the land was carpenter service inam. As this fact was neither pleaded nor established in the former suit, the decision in the former suit could not be said to be without jurisdiction. Reliance is placed on the decisions in Shamsundar singh v. Dhirendra Nath, A. I. R. 1950 Pat. 465. and Chandu Kunhan v. Ukkappan, (1948) 2 M. L. J. 177 : A. I. R. 1949 Mad. 157 lastly it was urged by the respondent that the plaintiffs should have applied to set aside the Court sale in execution of the mortgage decree within the period limited by Article 166 of the Limitation Act and not having done so, the present suit was not maintainable. Reliance was placed on Veeramghavayya v. Venkatara ghavareddi, (1947) 2 M. L. J. 468 : I. L. R. (1948) Mad 522 (F. B. ). a case of an execution sale of service inam land. The learned Chief justice did not lay down that the only remedy of the judgment-debtor was to set aside the execution sale by an application under section 47, Civil Procedure Code, though the other two learned Judges held that the sale could not be treated as a nullity and had to be set aside by the judgment-debtor by an application under section 47, Civil Procedure Code. All the three Judges agreed that Article 166 and not Article 181 applied to an application by the judgment-debtor to set aside the sale. The plaintiffs are in possession of the service inam lands and only seek a permanent injunction. The contention of the appellants is that the Court sale was a void sale and a nullity and did not require to be set aside by an application under section 47, Civil Procedure Code. This again depends upon whether the Court had jurisdiction to sell the property. If it had no jurisdiction to pass a decree for sale, the decree and the sale would be void. Raghunath Das v. Sundar Das, 27 M. L. J. 150 : L. R. 41 LA. 251 : I. L. R. 42 Gal. 72 (P. C. ). ; Khairajmal v. Daim, (1904) L. R. 32 LA. 23 : I. L. R. 32 Cal. 296 (P. C. ). Jnanendramotian Bhaduri v. Rabeendranatti chakrabarti, 64 M. L. J. 341: L. R. 60 LA. 71 : I. L. R. 60 Cal. 670 (P. C. ).

( 11 ) THE questions involved in this second appeal are of frequent recurrence. I have assembled the relevant cases and shown the points of difference. There has been a difference of judicial opinion on the question whether when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason of the prohibition contained in section 5 of Madras Act III of 1895, it is open to the inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at the Court sale or resist the claim of the purchaser to be put in possession of the lands. In thee circumstances, I direct the papers to be placed before the Chief Justice for orders as to posting of the case for hearing by a Division Bench.

( 12 ) THIS second appeal then came on for hearing before Mr. K. Subba Rao, C. J. , and Mr. Bhimasankaram, J. , and the order of reference to a Full Bench was made by subba Rao, C. J.-This Second Appeal was referred to a Bench by Viswanatha sastri, J. The facts may be briefly stated. Items 1 and 2 of the plaint schedule are carpenter service inams, and item 3 is jeroyiti land. Plaintiffs 1 to 3 who own the said items mortgaged them to the 1st defendant. On the foot of the mortgage, the 1st defendant filed O. S. No. 276 of 1940 on the file of the Court of the district Munsiff of Ongole and obtained a decree therein. In execution of the decree, the properties were brought to sale and purchased by the and defendant. The plaintiffs filed a suit O. S. No. 279 of 1945, on the file of the Court of the District munsiff, Ongole, for an injunction restraining the defendants from interfering with plaintiffs possession and enjoyment of the suit properties. It was alleged in the plaint that items 1 and. 2 being service inam land are inalienable, and therefore, the decree as well as the Court sale were invalid. It is not necessary to particularise the contentions in regard to item 3 as nothing turns upon it in the second appeal. The learned District Munsiff found that the suit is barred under section 11, Civil procedure Code, as well as under section 47, Civil Procedure Code. On appeal, the learned Subordinate Judge came to the same conclusion. The second appeal filed by the plaintiffs was heard by Viswanatha Sastri, J. , Before the learned judge, it was contended that the decree and the execution proceedings in regard to the said items were made without jurisdiction, and therefore the plaintiffs, who were in possession of the service inam lands, were entitled to ignore them and to sue for a permanent injunction restraining the defendants from interfering with their possession. They further contended that as the sale was null and void it did not require to be set aside by an application under section 47, Civil Procedure Code.

( 13 ) THE learned Judge considered the conflicting decisions on the questions raised and pointed out that there was difference of judicial opinion on the question whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason of the prohibition contained in section 5 of Madras Act III of 1895, it is open to the inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at the Court sale or resist the claim of the purchaser to be put in possession of the lands. It is not necessary to cover the ground over again. We have gone through the judgment of the learned Judge and have also heard the counsel appearing for both the parties. There is a real conflict between the Bench decisions of the Madras High Court. The Full Bench decision in veeraraghavayya v. Venkataraghava Reddi, (1947) 2 M. L. J. 468: I. L. R. (1948) Mad. 522 (F. B. ). which held that an application by the judgment-debtor to set aside the sale on the ground that the properties sold being service inam were inalienable was governed by Article 166 of the Limitation Act, did not consider the decisions wherein it was held that the decree directing the sale of such lands and execution proceedings in which they were sold were nullities. If the court has no jurisdiction to sell the property, it may reasonably be argued that the person who is in possession can ignore the decree and the sale and resist the taking over of possession in execution of the decree or file a suit to sustain his possession.

( 14 ) AS the Full Bench held that section 47, Civil Procedure Code, applied to an application for setting aside such a sale by a judgment-debtor, it may be relied upon in support of the contention that such a sale was not a nullity and that no suit was maintainable. This decision is certainly in conflict with the decisions which held that the Court has no jurisdiction to pass a decree or sell such a property in execution of that decree. It is necessary to have an authoritative decision of a Full Bench to resolve the above conflict. We therefore refer the following two questions to the Full Bench : 1. Whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason of the prohibition contained in section 5 of Madras Act III of 1895, it is open to the inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at a Court sale or resist the claims of the purchaser to be put in possession of the lands ? 2. Whether section 47 of the Civil Procedure Code is a bar to the maintainability of the suit ? in pursuance of the said order of reference the matter came on for hearing before the Full Bench. Subba Rao, C. J.

( 15 ) THE following two questions have been referred to the Full bench by a Division Bench of this Court :"1. Whether, when service inam lands have been sold in execution of a mortgage decree without any objection being raised at any stage of the proceedings to their saleability by reason of the prohibition contained in section 5 of Madras Act III of 1895, it is open to the inamdar to treat the Court sale as null and void and recover possession of the lands from the purchaser at a Court sale or resist the claim of the purchaser to be put in possession of the lands ? 2. Whether section 47 of the Civil Procedure Code is a bar to the maintainability of the suit ?"the facts relevant for appreciating the questions raised may be briefly narrated. The appellants filed O. S. No. 279 of 1945 in the Court of the District Munsiff, ongole, for a permanent injunction restraining the defendants from interfering with their possession and enjoyment of Items 1 and 2 of the plaint schedule which are carpenter service inam lands held by the family. The appellants mortgaged those items to the 1st defendant. On foot of the mortgage, the 1st defendant filed O. S. No. 276 of 1940 in the Court of the District Munsiff, Ongole and. obtained a decree therein. In execution of that decree, the said items were brought to sale and purchased by the 2nd defendant. The sale was duly confirmed. Thereafter, the 1st defendant sold the said items to the 2nd defendant. The plaintiffs filed the aforesaid suit for a permanent injunction on the ground that the decree for sale and the subsequent sale in execution were null and void. The 2nd defendant contested the suit. The learned District Munsiff dismissed the suit on the ground that motions 11 and 47 of the Civil Procedure Code operated as a bar to the maintainability of the suit. On appeal the learned Subordinate Judge agreed with the view of the District Munsiff on both the points. The plaintiffs preferred a Second appeal to this Court. Viswanatha Sastri, J. , in view of the conflicting decisions on the questions, referred the case to a Division Bench which, in its turn, referred the aforesaid questions to the Full Bench.

( 16 ) LEARNED counsel for the appellants argued that the Court which passed the mortgage decree, had inherent want of jurisdiction to direct the sale of a carpenter service inam and that the decree directing sale of the said inam and the sale held pursuant to the decree were nullities and, therefore, could not operate as res judicata. The reply of the learned counsel for the respondents may be stated thus. The Court, which decided the mortgage suit, had jurisdiction to decide whether a particular property was alienable or not and the appellants not having raised the plea of inalienability either in the suit or in the execution proceedings, are now precluded by the principles of constructive res judicata from questioning their validity.

( 17 ) AT the outset, it will be convenient to restate briefly the well-settled principles or res judicata relevant to the present enquiry. Under section 11, Civil Procedure code, 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 a former suit between the same parties or between parties under whom any of them claim. It is a self evident proposition that a judgment delivered by a Court not competent to deliver it cannot operate as res judicata. Nor can a judgment obtained by fraud or collusion have that effect. The said instances are not really exceptions to the rule of res judicata but, as the judgments are void, there is no scope for invoking that section. Explanation IV to section 11 introduces the rule of constructive res judicata where- under any matter, which might and ought to have been, made a ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Such a ground of defence or attack must be deemed to be constructively in issue in the suit and must be deemed to have been decided one way or other depending upon the decree issued in the case. The rule of res judicata embodied in section 11 does not exempt from its operation issues raising questions of public policy depending upon either common law or statutory prohibitions. It has also been held that section 11 is not exhaustive and that the principle of res judicata could be applied to interlocutory orders and to execution proceedings. See Ram Kirpal v. Rup Kuari, (1883) I. L. R. 6 All. 269 : l. R. 11 I. A. 37 (P. C.) So too, it has been recognised by decided cases that the principles of constructive res judicata can also be invoked to a limited extent in the case of orders made in execution. So much is granted. The conflicting arguments of the learned counsel centered round the question whether the decree for sale of the carpenter service inam and the sale pursuant thereto were made without jurisdiction. Unhampered and uninfluenced by the decisions cited at the bar, I shall attempt to test the relative merits of the arguments advanced on the basis of the aforesaid principles. Can it be said in the instant case that the District Munsiff s Court, Ongole, which entertained O. S. No. 276 of 1940, the suit filed by the 1st defendant on the foot of the mortgage and which passed a decree therein, had no jurisdiction to do so : There is an essential distinction between the question of the jurisdiction of a Court to entertain a suit and the rule of law which precludes a man from avowing the same thing in successive litigations. There is also a marked difference between inherent want of jurisdiction to entertain a matter and the irregular exercise of it. The jurisdiction of a Court depends upon the pecuniary and territorial limits laid down by law and also on the subject-matter, while the doctrine of res judicata operates on the decision of a Court in a suit or other proceeding which the Court had inherent jurisdiction to entertain. If, in the instant case, the District Munsiff s Court had want of inherent jurisdiction to entertain the suit to enforce the mortgage, the decision therein would not operate as res judicata in the present suit. The Court had admittedly pecuniary and territorial jurisdiction to entertain the suit to enforce the mortgage. It had. also jurisdiction to decide whether the mortgage was valid or not having regard to the provisions of Act III of 1895. If the plaintiffs had raised the plea therein that the mortgaged properties were carpenter service inams and, therefore, the mortgage was invalid, the Court would have raised the relevant issue and decided whether the suit items were carpenter service inams and, if so, whether the mortgage was invalid. Such a decision would have been by a competent Court having jurisdiction to entertain the suit and, therefore, binding upon the parties and their representatives. Should it be held that a finding of the Court that the land was not a service inam on a specific issuse raised before it, would not operate as res judicata between the parties in a subsequent suit, that question could never be finally decided for, in every subsequent suit, that question could be raised between the parties on the ground that the Court in the earlier suit exercised jurisdiction which it had not or refused to exercise one which it had. The principle that where a statute confers on a Tribunal jurisdiction subject to a condition, it cannot clutch at jurisdiction by deciding wrongly the existence of that condition, has no application to the decision of a Court in regard to questions that legitimately arise for decision in the course of a suit maintainable therein. If so much is conceded, I do not see any reason why the principle of constructive res judicata cannot be invoked in regard to the decision of a Court in such a suit. Explanation IV to section 11 does not impose any such limitation. If the appellants who could have non-suited the plaintiff by raising the question of the inalienability of the carpenter service inam, did not raise it, by reason of that Explanation the said question must be deemed to have been constructively in issue in the suit. When a decree was made, the Court must be deemed to have decided that the said property was alienable property and, therefore, the said decree would operate as res judicata in a subsequent suit. The same reasoning would also apply to the order of the confirmation of sale made in execution proceedings. The plaintiffs ought to have raised the plea that the items being carpenter service inams were not liable to be sold. By confirming the sale, the Court must be deemed to have held that the property was alienable and that order would operate as res judicata. To put it differently, a decision of a Court, either actual or constructive, on an issue that arises in a suit or in execution pioceedings would operate as res judicata in subsequent proceedings between the same parties and, on the basis of that principle, the decree obtained against the plaintiffs 1n the mortgage suit as well as the order of sale made in execution proceedings would be binding on the plaintiffs 1n the present suit.

( 18 ) I shall now consider the decisions cited at the Bar. The earliest case is that of a Division Bench of the Madras High Court in Lakshmanaswamy Naidu v. Rangamma, (1902) I. L. R. 26 Mad. 31. There, the learned Judges held that the executing Court was competent to refuse to execute a compromise decree wherein the mirasi rights of the defendant attached to the Devasthanam and his right to the emoluments to the office which were mortgaged to the plaintiffs were directed to be sold. The basis of the judgment is found in the following passage at page 33 :"in the case of Naeappa v. Venkat Rao, (1900) I. L. R. 24 Mad. 265. it was pointed out that when a decree is based on an agi eement of compromise and when there is nothing more on the part of the Court than a mere adoption of the contract the Court must be taken to adopt the contract with all its incidents. Under section 375 of the Civil Procedure Code, the Court had no jurisdiction to pass a decree on a compromise unless it was a " lawful " conpromise. Any terms of-a contract which are opposed to public policy are invalid and will not be enforced by the Courts ".

( 19 ) THIS decision, therefore, is not an authority for the position that the principles of res judicata would not be applicable to the decision of a Court expressly or con- stiuctively made on the question of the inalienability of a particular property which was the subject-matter of a suit. As the decree was a compromise decree, the learned judges, applying the law of contracts, held that the compromise was invalid. Further, in that case, the limits of the power of an executing Court to go behind the decree and the question of res judicata did not arise for consideration. Raja of Vizianagaram v. Dantivada Chelliah, (1904) I. L. R. 28 Mad. 84: 14 M. L. J. 468. was also a case where the question of the validity of the decree directing sale of a carpenter service inam was raised in execution. The learned Judges held that the prohibition in section 5 of the madras Hereditary Village Offices Act (III of 1895) against attachment and sale by the Courts was absolute and deprived Civil Courts of all jurisdiction to give directions for sale of inam lands granted as emoluments for the performance of duties connected with the offices referred to in that cction and that, therefore, a decree directing the sale of such lands was ultra vires. The reasons for the decision were expressed by the learned Judges at page 86 thus :"but where the prohibition has some object of public policy in view the rule is to enforce the prohibition literally and strictly (compare Hardcastle on " Interpretation of Statutes " Third Edition, pages 392 and 397 ). There can be no doubt that section 5 referred to has been framed on consideration of such a policy and in order to guard against the dissociation from the specified offices, to any extent whatever of the emoluments attached thereto, as that cannot but impair the efficiency 0f the services to be rendered by the officers and consequently affect injuriously the interests alike of the Government and of the sections of the public concerned. "

( 20 ) IN these circumstances the prohibition, in question, must be taken to be absolute and to deprive civil Courts of all jurisdiction to give a direction for sale of such inam propertv as that in question. And the decree in so far as the direction for sale goes was altogether ultra vnes and incompetent to confer the right intended and Courts are bound on the matter coming to theii notice to abstain from enforcing the direclion.

( 21 ) THE learned Judges in that case were not considering the questionof res judicata. An alienation of a carpenter service inarn may be void. But, when a competent court decides that a particular alienation is valid, when the same question arises between the same parties or their representatives in a subsequent sun, the finding operates as res judicata. A Full Bench of the Madras High Couit held in Anjantyulu v. Sri Venugopala, rice Mill Ltd. , Tenali, (1922) I L. R. 45 Mad. 620 : 42 M. L. J. 477 that lands held on Swastivachakam service tenure are not subject to attachment in execution of a decree as the sale of such lands is opposed to public policy and the nature of the interest affected. In that case, the question of the alienability of the said property arose in a claim petition filed by the holder when the property was attached in execution of a money decree obtained against him. The question of res judicata obviously did not arise in that case. Another Division Bench of the Madras High Court in Rajah of Kalahasli v. Venkatadri Rao, (1927) I. L. R. 50 Mad. 897 : 53 M. L. J. 533 held that, even if a decree had been passed, without objection, for the sale of an impartible estate, the objection that the section prohibits the sale can be taken in execution. At page 904, the grounds of the decision are statedy Odgers, J. , thus :"therefore there seems to me to be a considerable body of opinion that, although a final decree may be passed without objection or even by consent, still the parties have no power by their act, nor indeed has the Court power, to evade the clear provisions of a statute if it is passed in the interests of public policy and not merely to benefit a particular class or individual". Curgenven, J. , at page 908 said much to the same effect thus :"but there is a class of cases to which, I think, these considerations do not apply, namely, where execution of the decree would involve the infraction of a provision of law enacted in the public interest. The consideration that the parties may not have raised the point does not apply, because it may not have been in their interest to do so; and however far the doctrine that the executing Court should enforce the decree as it stands may be pushed, it cannot extend to an enforcement which involves breach of such a provision. "

( 22 ) NO question of resjudicta arose in this case. This decision, if I may say so, with respect, gives the executing Court the status of an appellate Court. If the conclusion arrived at by the learned Judges be correct, by the same parity of reasonning, the executing Court can come to a different conclusion on a finding of fact different from that arrived at by the original Court. If the original Court had held that the property in question was alienable, the executing Court on the same facts could come to a different conclusion and refuse to execute the decree. This would affect the finality and sanctity of deciees passed, by competent Courts and will introduce unnecessary complications. So too, another Division Bench of the Madras High Court held in Ramakrishnamma v. Venkatasubbaiah, (1934) 68 M LJ. 46 : I. L. R. 58 Mad. 389. that inam lands burdened with dasabandam service are inalienable as being against public policy and cannot be sold in execution of a decree against the inamdar. The learned Judges further held that the inamdar could not be estopped from questioning the Court sale which he had allowed to be held without protest. The only question that was argued in that case was about the validity of the sale of inam lands burdened with dasabandam service. The advocate appearing for the appellant did not question the correctness of the finding on the question of estoppel and no question of res judicata was even raised. But a contrary view was taken by another Division Bench of the Madras High Court in annamalai Cfiettiar V. Kumarappan Sriiangachanai, I. L R. 1937 Mad. 329 : 71 M. L. J. 867. The learned Judges Burn and lakshmana Rao, JJ. , held that when there was a final decree for sale of mortgaged property, it was not permissible for the executing Court to enquire into a plea raised by the judgment-debtor that the property was not liable to be sold on the ground that it is a temple service inam and, therefore, inalienable where the allegation of the judgment-debtor that the property was inalienable temple service was denied by the decree-holder. The argument advanced by the judgment-debtor in that case was stated by the learned Judges thus :"the learned Advocate for the respondent contends that he is not asking that the executing court should be considered to be empowered to question the validity of the decree, but that he is only asking that it should be held to have power to enquire into facts which, if proved, would take away its jurisdiction to order sale ".

( 23 ) ADVERTING to that contention, the learned Judges observed : "with all respect, we think that there is here a slight begging of the question involved. The qui-stion which we have to decide is whether the executing Court has power to go into disputed questions of fact which, if proved, would take away its jurisdiction to order sale ". They distinguished the decisions in Rajah of Vizianagaram v. Dantivada Chelliah, (1904) 14 E. L. J. 468 : I. L. R. 28 Mad. 84 and Raja of Kalahasti v. Venkatadri Rao, (1929) 53 M. L. J. 533 : I. L. R. 50 Mad. 894 on the ground that in those cases the facts were not disputed. Pandrang Row and Abdur Rahman, JJ. , in Lakshmadu v. Ramudu, I. L. R. 1940 Mad. 123. also accepted the well-established legal pos-ition that the alienation of a dasabandam seivice inam was against public policy and was void. On that basis, they held that a mortgage of the dasabandam inam by the deed of 1915 and its sale in execution of the decree obtained on that deed were nullities. The question in that care came to be decided in a different suit. A mortgage of the dasabandam inam was executed by the plaintiffs father and the mortgagee filed a suit to enforce the mortgage and obtained a preliminary decree therein. Thereafter, the mortgagor died and his sons, the plaintiffs were brought on record; When they tried to raise the question of the invalidity of the mortgage, they were not permitted to do so.

( 24 ) IN due course, a final decree was made and the properties were sold. Thereafter, they filed another suit for recovery of possets ion of those properties alleging that the mortgage, the decree and the subsequent sale were void and inoperative. When it was contended that the previous decrees were binding on the plaintiffs, the learned judges negatived that contention on the following grounds :"they tried to raise the question regarding the alienability of the property mortgaged and the binding nature of the debt but were not permitted to do so. This course was adopted by the Court on account of the provisions contained in Order 22, Rule 4 (2), Civil Procedure Code. It may be tha t for certain purposes the suit might be deemed to have been pending and not disposed of until a final decree was passed but there is no doubt that the whole of the trial had come to an end and the points which the present plaintiffs wished to raise then could not have been gone into at that stage. Moreover the defences which they wished to raise were not such as to be called appropriate to their character as Appanna s legal representatives. They could not have assailed the decree which had been passed against their father during his life-time. It would therefore follow that the decree cannot be held to be binding on them in their individual capacity in which the present suit was brought ".

( 25 ) THE aforesaid observations would have been unnecessary if the father himself could have raised the plea, that, notwithstanding the decree against him, the sale was void. This judgment, therefore, far from supporting the case of the mortgagor to some extent goes against his contention. Another Division Bench of the Madras High Court in Ramachandra Suri harisctiandra Deo Gam v. Venkatalakshminarayana, (1918) 37 M. L. J. 65. held that the question of the validity of a preliminary decree for ale of an impartible estate could be raised in final decree proceedings despite the fact that the preliminary decree was made by consent. The raison d etre of the conclusion is found in the following passage at page 67 :"the policy of the Impartible Estates Act is to preserve the property in the family of the zamindar and for that purpose it categorically prohibits all alienations by the zamindar for the time being except in certain circumstances. . . . . If he could not alienate the estate by mortgaging it or selling it, he could not do so by any voluntary act having the same effect such as by confessing judgment. . . . . . The rasinamah decree here does not embody any decision of the Court but embodies a contract of the parties with reference to the subject-matter ".

( 26 ) THIS judgment, therefore, is only authority for the position that the mortgagor, though he agreed for the sale of the impartible estate at an earlier stage, is not estopped from raising the plea at a subsequent stage of the proceeding that the sale of the impartible estate was void. The scope of the doctrine of res judicata vis-a-vis the decision of a Court on the validity of an alienation contrary to statutory prohibition is found in the decision of the Judicial Committee in Charan Singh v. Charan Singh, (1936) 70 M. L. J. 122 : L. R. 63 LA. 53 (P. C. ). There, in a prior suit, it was decided that section 12-A of the Chota Nagpur Encumbered Estates Act, 1876, which rendered void any transaction to which it was applicable, did not apply to a particular transaction. In a subsequent suit between the same parties, the decision was sought to be reopened. Their Lordships held that the previous decision operated as a bar under section 11, Civil Procedure Code. Adverting to a similar argument, the Judicial Committee observed at page 127 :"truly the third sub-section I2-A renders void any transaction to which it is applicable, but the question as to whether it applies to a particular transaction entitled the Court to consider the construction of the section and the determination of its applicability rests with the Court. The decision of the Court in the suit of 1917 determined that the section had never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned Judge which allowed him not only to express a strong contrary view as to the applicability of the section which he was entitled to do if he so chose, but to try anew the issue as to its applicability in face of the express prohibition in section 11 of the Code ".

( 27 ) THE prohibition against alienation in that case, as in the present case, was based on public policy. Under section 12-A of the Encumbered Estates Act, no alienation could be made without the previous sanction of the Commissioner. But still their Lordships did not engraft an exception to section 11 on the ground that the alienation was void ab initio and, therefore, the decision thereon would not operate as res judicala. This decision, in my view, is the nearest approach to the point raised before us.

( 28 ) VENKATASUBBA Rao and Madhavan Nair, JJ. , in Somasundaram v. Kondayya, (1925) 49 M. L. J. 401. held that the order of the confirmation of sale of an unenfranchised inam would preclude the judgment-debtor from raising the question of alienability at a subsequent stage. At page 407, Venkatasubba Rao, J. , rejecting the contention of the judgment-debtor expressed himself thus :"it was next contended that the sale of an unenfranchised inam is absolutely void and the plaintiff s suit should on that ground be dismissed. 1 cannot follow this contention. As I have said, we are not here concerned with the true facts of the case but only with the result of certain proceedings. Is the defendant to be permitted to plead that the land was inalienable at the time of the Court sale ? the effect of the order confirming the sale is that the land can be alienated. The order is conclusive and it must be deemed that there is an adjudication that the property can be sold. In this view it is unnecessary to consider Raja of Vizianagaram v. Dantivada Chelliah, (1904) I. L. R. 28 Mad. 84: 14 M. L. J. 468. Sannamma v. Radhabhayi, (1917) I. L. R. 41 Mad. 418: 34 M. L. J. 17 (F. B. ). Nazabari Sahu v. Siva Korithan Naidu, (1913) M. W. N. 415. and other cases cited on this point". The other learned Judge Madhavan Nair, J. , in a separate but concurring judgment stated the same legal position in different words. This judgment is, therefore, authority for the position that the order confirming the sale amounts to an adjudication on the question of alienability and on the principles of constructive res judicata the judgment-debtor could not reopen the same. If that be so in the case of an order in execution proceedings, it must be so a fortiori in the case of a decree for sale in a mortgage suit. This decision was followed by King, J. in Venkatappadn v. Appalaswami, (1940) 2 M. L. J. 487. and by Madhavan Nair, J. , in Bullayya v. Subbayya, A. I. R. 1933 Mad. 130. The Calcutta High Court in Dwarkanath Pal v. Sankar Ray, (1907) LL. R. 34 Cal. 199. applied the doctrine of constructive res judicata to a case where a non-transferable occupancy right was allowed to be sold and the sale was confirmed by the Court.

( 29 ) SO, too, the Patna High Court in Sundar Singh v. Dhirendra Nath, A. I. R. 1950 Patna 465 invoked the principle of constructive res judicata where the judgment-debtor did not raise the luestion of saleability at the time of sale and the sale was confirmed. The learned judges no doubt drew a distinction between a case where the non-saleability of the property was admitted and a case where it was not admitted. In the former case vhere the facts were admitted, the learned Judges were inclined to hold that failure raise the objection by the judgment-debtor could not create either estoppel or res judicata.

( 30 ) THE Bombay High Court also allowed the plea of constructive res judicata to prevail in Kishoredas v. Bai Harkha, (1909) I. L. R 33 Bom. 479. where the Question of the validity of an aliension made contrary to a statutory prohibition was not taken in an earlier proceeding. rejecting an argument similar to that raised before us, Scott, C. J. , obseived at page 82 :"it was however suggested by the pleader for the defendants that a plea of estoppel by res judicata annot prevail where the result of giving effect to it will be to sanction what is illegal. This however not the law. No such limitation is contained in section 13 of the Code of 1882. If the legality of an act is a point substantially in dispute, it may be a fair subject of compromise in Court like any other disputed matter and thus become res judicata. See great North-West Central Railway v. Charebois, (1899) A. C. 114 similarly if it is abandoned or not put forward by a defendant it must, having regard to the provisions of section 13, be deemed to have been decided against him ". it is not necessary in this case to attempt to evolve an acceptable principle circumscaribing the limits of the jurisdiction of an executing Court to go behind the decree.

( 31 ) THE literature on that subject is vast and the ramifications are complicated. The aforesaid discussion of case-law discloses three currents of judicial opinion on three allied, subjects. The first deals with properties, alienation whereof is prohibited on grounds of public policy, the second discusses the limits of the jurisdiction of an executing Court to go behind the decree and the third applies the doctrine of es judicata to decisions of Court on the question of the validity of prohibited alienaions.

( 32 ) THERE is unanimity of opinion on the first, conflict on the second and a preponderance of authority on the third. It is true that, if an executing Court could go behind the decree and hold that an alienation was void, it would be incongruous 10 hold that the decision in that suit would be tes judicata in another suit. I would prefer to adhere to the strict rule barring the executing Court going behind the decree rather than to stretch the rule to a breaking point to sustain principles of public policy. Both can co-exist without doing violence to either. A wrong decision, express or implied directing a sale and thus taking a case out of the rule of prohibition based on public policy can be set aside or modified by appropriate procedure. It may be reviewed when there is an apparent error on the face of the decree. It may be spectified in an appeal or it may be set aside in collateral proceedings if obtained by fraud or collusion. If public service inams are sold, the Government if not a party to the decree, could, intervene and resume the same. The successor-in-office may, inder certain circumstances, question the validity of the alienation when succession opens to him. A decree directing the sale of properties not saleable on the ground of public policy could not be equated to decrees against dead persons and lunatics. it is good till set aside in the manner known to law.

( 33 ) THERE is no conflict between the principle of res judicata and that of prohibited alienation of particular properties on the ground of public policy. An alienation of properties prohibited by public policy or statute may be void. But the said prohibition cannot have the effect of depriving the jurisdiction of Courts to decide in particular suit whether the alienation is void or not. Nor can it over-ride the principles of res judicata. The former belongs to the domain of substantive law and the latter to the rule giving finality to decrees of competent Courts. The sanctity of final judgment is as much based on public policy as prohibition against the alienation of properties annexed to certain public offices. "the fundamental question in each case therefore is whether the Court has inherent jurisdiction to entertain a particular suit. A duty is cast upon a Court to raise relevant issues arising on the pleadings and give definite findings on each of the issues. The question whether a carpenter service inam is alienable raises a mixed question of fact and law which is certainly within the jurisdiction of the Court to decide. When it decides the question one way the finding will be res judicata in another suit. If the defence which ought to be raised is not raided the Court must be deemed to have decided against the contention not raised. In the instant case the validity of the mortgage on the ground of public policy was not raised in the earlier suit or in the execution proceeding and, therefore the decree and the order confirming sale would operate as res judicata in the present suit.

( 34 ) THE next question is whether section 47 is a bar to the maintainability of the suit. Strong reliance is placed by the learned counsel for the respondent on the judgment of a full Bench of the Madras High Court in Veetaraghawayya v. Venkatamghavaieddi, I. L. R. 1948 Mad. 522. There an unenfranchised service inam was Fold in execution of a deciee and the sale was confirmed. The land was inalienable under the provisions of section 5 of the madras Hereditary Village Offices Act (Act III of 1895 ). More than 30 days after the confirmation of the sale the judgment-debtor applied under action 47, Civil procedure Code, seeking a declaration that the sale was void and 10 have it set aside. The question raised was whether Article 166 or 181 of the Limitation Act was applicable to that application. The Full Bench held that the application was haired by limitation under Article 166 of the Limitation Act. The only question raised before the Full Bench was of limitation. All the parties as well as the Court assumed that the question raised was one within the scope of section 47, Civil Procedure Code. In execution of a money decree the inalienable service inam was sold and purchased by the decree-holder. The judgment-debtor filed an application seeking inter alia a declaration that the sale was void and to have it set aside. The dispute was between the parties to the suit and related to the execution of the decree and therefore the provisions of section 47 were attiactcd. But, in the present case, the decree itself directed the sale of the service inam and the judgment-debtor seeks to question the validity of the decree itself. The question raised therefore, does not relate to the execution of the decree but to the validity of the decree itself.

( 35 ) THAT apart, the authority of the Full Bench is considerably shaken by the subsequent judgment of the Supreme Court in Merla Ramarma v. Nattaparaju, (1956) S. C. J. 101. wherein their Lordships held that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declaied void and for appropriate reliefs is governed by article 181. Under section 47, all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. To invoke this section, the question raised shall relate to the execution, discharge or satisfaction of the decree. The question raised by the plaintiffs 1n the present case does not relate to the execution of the decree for they attacked the decree itself on the ground that it was void. The correct principle in my view has been stated by Sulaiman, C. J. in Mahabit Singh v. Dip Norain tewali, (1931) I. L. R. 51 All. 25. where the learned Judge observed :"i am therefore clearly of opinion that where the question is either that a decree was passed against a dead person or was not passed against him at all and therefore it is a nullity, pure and simple, the dispute does not relate to the execution of the decree but aims at its utter destruction. The dispute as to the execution of a decree contemplates the existence of a valid decree. Where a decree is without jurisdiction or is otherwise utterly null and void, and can therefore be ignored by a person, his protest is not merely as to its execution but he impeaches the decree itself. Such a dispute, in my opinion, is not within the purview of section 47 at all".

( 36 ) WE respectfully accept the above statement as laying down the correct law on the subject. If so, the question now raised is not one relating to execution within the meaning of section 47, Civil Procedure Code.

( 37 ) IN the result I answer both the questions in the negative. On receipt of the answer to the reference by the Full Bench, the Second Appeal same on for hearing before the Division Bench. The Court delivered the following following the opinion given by the Full Bench, this Second appeal is dismissed with costs. Appeal dismissed.