Choudhary, J.

(1) This is a decree-holders appeal arising out of an order allowing the objections raised by the judgment debtors, under Section 47, Civil P. C., to the maintainability of an execution case.

(2) In this case, the Maharajadhiraj, of Dar-bhanga is the decree holder and Kumar Krishnanand Sinha and others of Banaili are the judgment-debtors. The estate of the judgment-debtors was in the hands of a receiver appointed by the court-in Title Suit No, 13 of 1935, The Maharajadhiraj of Darbhanga had to get from the judgment-debtors a huge sum of money, and an application on his behalf was made in that title suit for a direction to the receiver to pay that amount to him. The application was allowed, and the receiver was directed to pay the money to the Maharajadhiraj. Necessary provisions were made for its payment in the budget of 1356 Fasli. The receiver, however, did not pay him anything, and ultimately the court passed an order on 13-9-1949, permitting the Maharajadhiraj of Darbhanga to realise the amount by executing the order of the court against the properties of the judgment-debtors in the hands of the receiver. The Maharajadhiraj of Darbhanga as a decree-holder thereafter started execution of the order on 11-2-1950, and sought to proceed against three lots of house properties of the judgment-debtors. After attachment and sale proclamation were duly effected, the judgment-debtors, on 19-8-1950, took time to pay the decretal dues and waived all objections regarding the issue of fresh sale proclamation. The case was therefore, adjourned to 21-7-1950, on which date the judgment-debtors again took time for settling the matter by compromise, and waived all irregularities in connection with the issue of fresh sale proclamation. The sale was, therefore, adjourned to 21-8-1950, and on this date an application was filed on behalf of the judgment-debtors challenging the proceedings of the execution case on various grounds. On this application Miscellaneous Case No. 91 of 1950 was started.

(3) The grounds that were pressed by the judgment-debtors against the maintainability of the execution proceedings were: (1) that the order of the court directing the receiver to pay the amount to the decree-holder was purely an administrative order, and, as such, it could not be enforced by execution; and (2) that the house properties sought to be sold to execution of the order were not in the hands of the receiver and they, therefore, could not be sold. The miscellaneous case came up to be heard on, 13-11-1950, on which date the (earned pleader on behalf of the decree-holder admitted that the properties sought to be proceeded with in the execution case were the personal properties of the judgment-debtor and that they had not vested in the receiver. As, however, the lawyer for the decree-holder was not prepared on law points, the case was adjourned to 2-12-1950, for final hearing. The case was thereafter heard on points of law, and the learned Subordinate Judge by his order dated 12-12-1950, overruled the first objection of the judgment-debtors and held that the order in question was a judicial order and was capable of execution. With regard to the second objection, he held that, in view of the order passed by the court, the decree-holder could not proceed with the execution as against the properties of the judgment-debtors which were not in the hands of the receiver. The objection of the judgment-debtors against the maintainability of the execution petition was, therefore, allowed and the decree-holder has come up to this Court- in appeal against that order.

(4) The contention put forward by Mr. B. C, De, appearing for the appellant is that the objection raised by the judgment-debtors that the properties sought to be proceeded within the execution case were not liable to be sold, was barred by constructive res judicata inasmuch as the judgment-debtors at the earlier stage of the execution did not raise such objection. The argument is that where a judgment-debtor fails to raise all his objections to the execution, which he might and ought to have raised, and the execution is ordered to proceed, all such objections will be deemed to have been impliedly decided against him and he will be precluded from raising the same objections at a later stage of the same execution proceeding. In....... support of this contention reliance has been placed on the case of -- Sham Sunder Singh v. Dhirendra Nath, AIR 1950 Pat 465 [LQ/PatHC/1950/102] (A). The correctness of this principle is not, and could not be, disputed on behalf of the judgment-debtors. The question that has to be considered, however is whether this principle could be applicable to the facts of the present case. In this case, as already observed, the lawyer for the decree-holder admitted that the house properties sought to be sold in execution of the decree were the personal properties of the judgment-debtors and they had not vested in the receiver. The order of the court dated 13-9-1949, entitled the decree-holder to realise the amount by proceeding against the properties in the hands of the receiver only. Therefore, the execution of the decree as against the properties which were not in the hands of the receiver was absolutely without jurisdiction. Such properties were not liable to be sold in view of the order of the court, and the executing court had no jurisdiction to sell them. That being the position, I do not think that the doctrine of constructive res judicata applies to this case. The case of AIR 1950 Pat 465 [LQ/PatHC/1950/102] (A), referred to above, in my opinion, instead of helping the appellant supports the contention raised on behalf of the judgment-debtors. In that case their Lordships made a distinction between a case where the property is admittedly non-saleable and a case where it has to be proved as a fact that such property is non-saleable and their Lordships held mat where the property is admittedly non-saleable, the executing Court cannot sell the property, and the failure to raise the objection in time does not create any estoppel and res judicata because there is no estoppel against the statute. But, where the facts themselves have to be determined which may lead to the inference that the property is not saleable, those facts must be pleaded and proved like any other question for determination by the court itself, and if those questions are not raised at a proper stage, the bar of res judicata must be applicable. As in the present case, it is the admitted case of the parties that the house properties not being in the hands of the receiver were non-saleable, the objection raised by the judgment-debtors in this behalf is not barred by . constructive res judicata.

(5) It has also been argued on behalf of the appellant that the judgment-debtors having waived all objections as to the irregularities in connection with the issue of fresh sale proclamation, could not question the execution on the ground that the properties which were advertised for sale, could not be sold, and in support of this contention reliance has been placed on the case of -- "Sheo balak Prasad v. Jugal Kishore, AIR 1936 Pat 568 [LQ/PatHC/1935/206] (B). The facts of that case, however, have got no bearing to the facts of the present case. In that case a mortgage suit was decreed on compromise which provided for the judgment-debtors personal liability for sums found due after the sale of the mortgaged properties. After the sale of the mortgaged properties, the decree-holders, under the terms of the compromise, proceeded against the other properties of the judgment-debtor. The judgment-debtor applied for time to raise money when his personal properties were put up for sale and waived his right to a fresh sale proclamation. Subsequently, he raised an objection to the execution of the decree on the ground that there was no personal decree passed against him under Order 34, Rule 6, Civil P. C. The objection of the judgment-debtor was found to have no foundation since the compromise decree provided for judgment-debtors personal liability also. In those circumstances it was held in that case that the judgment-debtor having failed to raise the objection that there was no decree at the earlier stage and having waived his right to fresh sale proclamation, could not turn round and question the execution on the ground that there was no decree. As already stated, in that case there was, in fact, a decree which was being executed and, therefore, apart from the question of the judgment-debtor being not entitled to raise the objection at a later stage, the execution was a good execution on merit. In the present case, however, on the admitted facts, the house properties of the judgment-debtors sought to ,be sold in execution of the order were non-saleable as not being properties in the hands of the receiver which alone under the order of the court could be sold in execution of that order. This case, therefore, has no application to the present case.

(6) For the reasons given above the contentions raised on behalf of the appellant, in my opinion, are without merit and have to be rejected. The result, therefore, is that the appeal fails and is dismissed with costs.