Raj Kishore Prasad, J.

(1) The appeal and the Civil Revision both are by judgment-debtors 4 to

8. The appeal is against an order passed by the learned Subordinate Judge of Dhanbad in an execution proceeding rejecting the objection of the appellants under Section 47, Civil P. C. The Civil Revision is against his order refusing to stay the sale of the disputed lands pending the disposal of the present miscellaneous appeal by this Court.

(2) I shall deal with the appeal first. The facts leading up to the present appeal may briefly be stated thus;-- The decree-holders-respondents 1 to, 23, who are respondents first party in the present appeal, are proprietors of Mauza Jayramdih, within pargana Nawagarh, which contains about 442 bighas of coal lands. On 26-4-1937, the decree-holders leased these lands to one Sripati Pal, father of respondents 1 to l(b) and husband of respondent- 1 (c), and, Mahadeo Chandra, respondent 2, on payment of royalty, the lands leased being first charge for payment of royalty, etc. At present these, lands are in possession of five sets of persons, viz. (1) Sashankasekhar Pal and others, sons and wife of Sripati Pal, one of the original lessees, (2) Mahadeo Chandra, the other original lessee, (3) Rai Saheb Kunja Behari Chandra, (4) Dhirendra Nath Chandra and his brothers, he present appellants, and (5) Rai Bahadur Waliram Taneja. The appellants have a separate block of 90 bighas of coal lands out of the entire 442 bighas: The decree-holders brought a suit for recovery of arrears of royalty for the entire village against all the above five sets of persons, end, on 26-3-1954, obtained a final decree for sale against the aforesaid persons. The decree was passed for Rs. 75,828-4-3 jointly against all the above persons. The decree-holders on 18-6-1954, executed their decree for the entire amount, but they are proceeding against the lands of the appellants only. The appellants on 3-9-1954, filed an objection under Section 47, Civil P. C., which however, was rejected on 13-12-195

4. The sale proclamation was issued on 21-12-1954, fixing 15-2-1955, for sale of the properties advertised. On 15-3-1955, the appellants filed the present objection under Section 47, Civil P.C., out of which the present appeal arises. This objection was rejected by the learned Subordinate Judge on 19-3-1955, on the ground that the objections which have been taken now, could have been taken on the first occasion, and as such these objections not having been taken before are barred by the principle of constructive res judicata. The judgment-debtors have, therefore, preferred the present appeal to this Court.

(3) In support of the appeal, Mr. S. C. Mazumdar has placed before this Court four points, namely,

(1) the executing Court has no jurisdiction to sell the property in view of Rule 37, Mineral Concession Rules, 1949; (2) the decision of the Court below that the objections of the appellants are barred by the principle of constructive res judicata is erroneous; (3) Makhaubala Dasi, one of the decree-holders, is not shown as one of the decree-holders, who are executing the decree, and, as such the execution was invalid under Order 21 Rule 15, Civil P. C.; and (4) the final decree mentions only 200 tubs to be sold, but in the execution petition as also in the sale proclamation 400 tubs have been mentioned for being sold and this was against the final decree, and, as such, it was illegal.

(4) As regards the first contention of Mr. Mazumdar, it will appear that Rule 37, Menral Concession Rules, 1949, has absolutely no application to the present, case, Rule 37 reads as follows:--

"The lessee may, with the previous sanction of the State Government and subject to the conditions specified in the first proviso to Rule 35 and in Rule 38, transfer his lease, or any right, title, or interest therein, to a person holding a certificate of approval on payment of a fee of Rs. 100/- to the State Government."

Rule 37 occurs in Chapter IV which deals with "Grant of Mining lease in respect of land in which the minerals belong to Government" as the heading of Chapter IV itself shows. Rule 27 provides that in case of land in which the minerals belong to Government, the application for a mining lease of such land has to be made to the State Government concerned, and then the State Government may grant the tease. If such a lessee, thereafter, at anytime, desires, to transfer his lease granted by the State Government, then Rule 37 provides that he can do so, subject to the conditions specified therein, with the previous sanction of the State Government Rule 37, therefore, applies to a transfer by a Government lessor of a lease granted by the State Government to him in respect of land in which the minerals belong to the State, Government, subject to the conditions mentioned therein. As such, Rule 37 does not apply to a transfer of a lease granted by a private person in case of land in which the minerals belong to him, and not to Government. In the present case, the leasehold as well as the minerals therein both belong to a private person, and as such Rule 37 does not apply to the present case.

(5) In para 1 of the objection petition, which was filed in the Court below, it was mentioned by the appellants that

"the colliery in question belonging to your petitioners (namely, the appellants) cannot be legally sold in court sale or by private sale otherwise than in conformity with the provisions of Rule 48 Mineral Concession Rules, 1949."

The learned Government Advocate, in reply to the contention of Mr. Mazumdar, relies on Rule 48, and submits that Rule 48, and not Rule 37, would apply to the present case. The appellants themselves correctly, mentioned in their objection petition in the Court below that Rule 48 was the rule which govern ed the present case, but in this Court reliance was placed on Rule 37, Rule 48 runs thus;--

"No prospecting license or mining lease to which the provisions of this Chapter shall apply, or any right, title, or interest in such license or lease, shall be transferred except to a person holding a certificate of approval from the State Government having jurisdiction over the land in respect of which such concession is granted."

(6) Rule 48 occurs in Chapter V which deals with Grant of mineral concessions by private persons as the heading of Chapter V itself shows. Rule 44 makes the position clear that the provisions of this Chapter shall apply to mineral concessions granted by private persons. Rules 46 and 47 provide the conditions under which a prospecting license or a mining lease, as the case may be, cam be granted by a private person. A private person can have lands in which there are minerals. Such lands can be leased out by him. Rule 48 provides that if a person, who has been granted by a private person a prospecting license under Rule 46, or a gaining lease under Rule 47, wants to transfer, or assign such a lease, or any right, title or interest therein, then he can do so only to a person who holds a certificate of approval from the State Government concerned. Rule 50 provides that after such a transfer or assignment, the transferee or assignee of such a lease will within one month of such transfer or assignment, inform the State Government concerned.

(7) Rule 48, therefore, applies to a transfer or an assignment, of a prospecting license, or a mining lease, in respect of land in "which the minerals do not belong to Government, by a private person who may be the owner of the land as well as of the minerals therein, or he may be the owner of the minerals only but not of the lands, but the minerals therein must belong to him, and not to Government, and this is the condition precedent for the application of Rule 4

8. It simply provides that no mining lease or prospecting license, or any right, title or interest therein, shall be transferred except to a person holding a certificate of approval from the State Government. This does not mean that the executing Court has no jurisdiction to sell such a property. It only provides that purchasers of such a property will be of a certain class, that is its bidders or purchasers will be only those persons who hold a certificate of approval from the State Government, It applies to a voluntary as well as to an involuntary transfer. I, therefore, hold that Rule 48 applies to the present case, and that it does not at all prohibit the sale of the disputed property in an execution case. At the time of the sale the Court below would make it clear that only those persons could offer bids who had got a certificate of approval as required by Rule 48, Mineral Concession Rules, 1949.

(8) The Court below took the view that the Mineral Concession Rules, 1949, applied to leases which were made after 1948, and, therefore, as in the present case the lease was executed much before 1948, these rules had no application. This view of the learned Subordinate Judge is obviously wrong. The Mineral Concession Rules 1949 came into force on 25-10-194

9. These rules apply to all transfers of lease, or prospecting license, or mining lease, or their assignments, made after the date when these rules came into force, irrespective of the fact whether the original lease itself was created before or after the date when these rules came into force. The fact, therefore, that the present lease was created before 25-10-1949, will not make these rules inapplicable, if the said lease is sought to be transferred or assigned thereafter. The objection of Mr. Mazumdar that the Court had no jurisdiction to sell this property in view of Rule 37, therefore, fails.

(9) As regards the next contention of Mr. Mazumdar that the principle of constructive res judicata does not apply to the present case, I find that there is no substance in this contention as well. In order to appreciate this objection it is necessary to know what the present objections were. The objections of the appellants were that the Court had no jurisdiction to sell the property in view of Rule 48, Mineral Concession Rules, 1949; the accounts as given in the execution petition and the sale proclamation are not correct; the interest had not been correctly calculated; the colliery in question had been grossly undervalued; Makhanbala Dasi, one of the decree-holders, was not a party to the present execution case; and the signature of one Bibasmbala Dasi as a decree-holder appeared in the execution petition, but she was not one of the decree-holders. The judgment-debtors took, objections also regarding the description of the property given in the sale proclamation and the omission to give the number of coal seams, their respective thickness and grades in the sale proclamation. The first objection as I have stated before, was filed on 3-9-1954, after the service of notice on them in the execution case. The above objections could have been taken in the first objection which was filed on 3-9-193

4. All these alleged irregularities, illegalities, or defects, which are now pointed out, were present, according to the judgment-debtors appellants, in the execution petition itself, and, therefore, these objections could and ought to have been taken on the first occasion, but admittedly these objections were not taken then, and as such these objections are clearly barred by the principle of constructive res judicata. Moreover, the objections about description and the omission to mention coal seams, etc., are not such defects which will prevent the intending bidders from getting a correct idea about the property to be sold so as to cause any prejudice to the judgment-debtors. I, therefore, hold that these objections are not tenable, because they are barred by the principle of constructive res judicata.

(10) As regards the objection taken in the objection petition regarding the jurisdiction of the Court to hold the sale, Mr. Mazumdar contends that this objection went to the root of the jurisdiction of the executing Court, and as such it could be taken even later and it would not be barred by the principle of constructive res judicata. In support of his contention he relies on the Full Bench decision of this Court in the case of -- Uchit Lal Misser v. Raghunandan Tewari, AIR 1934 Pat 666 [LQ/PatHC/1934/149] (FB) (A), and contends that the fact that the appellants did not raise the question of jurisdiction in the first objection, which they might and ought to have raised, did not operate as an estoppel against them, inasmuch as there could be no estoppel against the statute. The line of his reasoning is that as res judicata is nothing but an estoppel by judgment, the plea in bar of the application of res judicata can be allowed. This case, however, has no application to the present case. It will appear that in that case the sale was prohibited under Section 47, Chota Nagpur Tenancy Act, 1908, and the executing Court was prevented from implementing the mortgage decree by Section 27(2), Santal Parganas Settlement Regulation, 187

2. In these circumstances his Lordship Courtney Terrel C. J. who delivered the judgment of the Full Bench, held that when the sale itself was prohibited by law, the fact that the judgment-debtor did not raise the question in the mortgage suit, which he might and ought to have raised, does not operate as estoppel, inasmuch as there can be rib estoppel against the statute, and, as such, the executing Court was not prevented from entertaining the non-saleability of the property by reason of the prohibition in the Regulation. No question of constructive res judicata arose at all in that case. In the present case, however, the law does not prohibit the sale of the property. The executing. Court had full jurisdiction to sell the property, subject to the purchasers being persons qualified under Rule 48, Mineral Concession Rules, 1949, as stated above. Therefore, that case has no application to the present case. In course of the argument my learned brother referred Mr. Mazumdar to the case of -- Mohanlal v. Benoy Kishan, AIR 1953 SC 65 [LQ/SC/1952/88] (B). In my opinion, the present case is covered entirely by the above Supreme Court decision. In that case also, as in the present case, the plea of the jurisdiction of the Court to execute the decree was not taken at all on some occasions and on other occasions when that plea was taken, it was abandoned, and, therefore, their Lordships of the Supreme Court held that if the plea of jurisdiction of the Court to execute the decree is not taken on previous occasions, when the judgment-debtor has had an opportunity to do so, and when he takes such an objection but he abandons it, in either case, such a plea, if taken in subsequent objections would be barred by the principle of consturctive res judicata. In the Supreme Court case the learned Judges of the Calcutta" High Court drew a distinction between the case of a regular assumption of jurisdiction and want of inherent jurisdiction, and taking the view that the order of the Subordinate Judge at Asansol fell under the latter category, came to the conclusion that the order was wholly null and void, and could not be pleaded in bar of the application of the principle of res judicata, and, therefore, their Lordships of the Calcutta High Court reversed the decision, of the lower Court. Their Lordships of the Supreme Court disposed of the Appeal mainly on the ground of res judicata, and they held that the objection regarding jurisdiction of the Court, which executed the decree, taken in the subsequent objection was barred by res judicata, and, therefore, they restored the order of the learned Subordinate Judge. In my opinion, the Supreme Court decision is on all fours with the present case. It is not well settled that the failure of a judgment-debtor to raise any objection to execution being proceeded with on the ground that the executing Court had no jurisdiction to execute the decree, on a previous occasion, on which he could have raised the plea of jurisdiction, precludes him from raising such a plea of jurisdiction on a subsequent occasion at a later stage of the; execution proceeding on the principle or construetive" res judicata. I hold, therefore, that the objection regarding sale ability of the land taken in the present objection petition by the appellants I is barred by the principle of constructive resi judicata, and the decision of the Court "below oil this point is correct.

(11) It was then contended that the execution was invalid under Order 21, Rule 15, Civil P. C., because Makhanbala Dasi, one of the decree-holders, was not a party to the execution case. It is true that in the execution petition itself there is no mention as to why Makhanbala Dasi, who was one of the decree-holders in the final decree for sale was not being made a party to the execution case. An affidavit, however, has been filed by the other side stating that Makhanbala Dasi died before the execution was taken put, and, as such, she was not made a party to the execution case. It is the duty of a decree-holder when he makes a written application for the execution of a decree in a tabular form as required by Rule 11(2) of Order 21, Civil P. C., to mention either in column (b) or (j) of the Tabular form, the fact of the death or otherwise of a decree-holder, whose name appears in the decree under execution but who is not a party to the execution case, giving reasons why he is not a party, for the information of the Court and to prevent the judgment-debtor from taking any such objection on this score and thereby from prolonging the execution proceeding. This the decree-holder should do in his own interest. He could also file a separate application to this effect along with the execution petition so that that fact may be noted in the order-sheet of the case. In the circumstances, there is no merit in the present objection also. Besides this, even this objection, which was open to the appellants at the time when they first filed their objection under Section 47, Civil P. C., not having been taken then is, as held before, barred by the principle of constructive res judicata.

(12) Finally, it is contended that the final decree shows that only 200 tubs are to be sold, but the execution petition and the sale proclamation both mention 400 tubs to be sold, and this could not be done because that would be against the final decree itself. In the first place, this objection was not taken on the first occasion, and, therefore, this also would be barred by the principle of constructive res judicata. In the second place, the learned Government Advocate appearing for the decree-holders has conceded that at the time of the sale it may be announced that only 200 tubs would be sold, and not 400 tubs as advertised, and, therefore, no prejudice would be caused to the appellants.

(13) All the objections of Mr. Mazumdar having failed, the present appeal is hereby dismissed with the observations made above. In the circumstances of the case, there will be no order for costs.

(14) The miscellaneous appeal having failed, the Civil Revision application has become infructuous, and this also, therefore, is hereby dismissed, but without costs.