Wort, J.The appellant who is the defendant in the suit was a purchaser of certain property in execution of what has been described ,as a decree for money. The money decree was obtained on the footing of a loan which was the subject-matter of a mortgage of 1918 by one Bhagwat who is one of the sons of the original holder of an impartible estate, which at one time was under the jurisdiction of the Manager of the chota Nagpur Encumbered Estates. The property was released and returned in 1915 and the learned Judge in the Court below has decided that Bhagwat, the mortgagor, was one of the holders within the meaning of Section 12.A of Act 6 of 1876. No question arises with regard to that. The money decree having been obtained, certain objections were put in by the judgment-debtor as to the validity of the execution proceedings. There appear to have been three of these objection petitions in the execution Court and at least on two occasions the question whether the sale was a valid sale, that is to say, whether the executing Court had jurisdiction to sell the property in execution of a money decree, having regard to the fact that no sanction of the Commissioner had been obtained u/s 12.A, was mooted, although, as the learned Judge in the Court below points out, was not decided. The objection petitions were all dismissed and the property having come into the possession of the defendant appellant, this action was brought claiming a declaration that there having been no sanction of the Commissioner, the sale to the defendant was void. Both the Courts below have come to the conclusion in favour of the plaintiff.

2. The first contention of Sir Manmatha Nath Mukherjee on behalf of the defendant, appellant is that a sale in execution of a decree is not an alienation within the meaning of Section 12-A and consequently the sanction of the Commissioner was unnecessary. An authority binding upon us with regard to the point and contrary to the appellants contention is the case in Khitnarain Sahi and Others Vs. Surju Seth and Others, .

3. The next contention put forward by the appellant is that this is a matter coming within Section 47, Civil P.C. as relating to execution, discharge or satisfaction of the decree and should be determined under that section and not by way of a separate suit.

4. The further contention in that connexion is that as this matter was raised although not decided in the objection petition u/s 47 which was decided against, the plaintiff, the point is res judicata by reason of Expl. 4 to Section 11, Civil P.C. The only serious contention against that argument raised by Mr. Sinha is the decision, in 1 Pat 5932 where the learned Chief Justice has made the following observation) during the course of his judgment:

Still I do not think that the special rules laid down in the Explanation to that section (that is Section 11) which go beyond the doctrine of res judicata ought to be applied generally in execution. Cases.

although he has previously said that h& thought that the doctrine laid down in Section 11 may be applied and rightly applied in execution arising out of the same judgment so as to put an end to litigation. The observation which I have quoted, and which appears to be in favour of Mr. Sinhas argument, with great respect to the learned Chief Justice, was not necessary for the purpose of the decision, the learned Chief Justice and Adami J. having affirmed the* decision of Ross J. which was to the effect that the point not having been raised pre. viously could not be sustained before him and further the matter with which the Court was there dealing was an application under Order 21, Rule 90. In my judgment it is. impossible to contend, as it was contended in that case, that, as the question of title was not gone into under Order 21, Rule 90, the parties were barred from subsequently going into the matter. I am therefore not surprised that the learned Chief Justice made the observation which is relied upon by Mr. Sinha. It does not support the contention in this case. There are two aspects, of the case. The objection was raised u/s 47. If Mr. Sinhas argument is correct, then if a point remains undecided so long as the objection is not taken u/s 47 there is no end to the number of objections, which may be brought; but that in my j judgment is an impossible contention. The argument that Expl. 4 to Section 11 does not apply to proceedings u/s 47, as I have already said is without foundation and it seems to me therefore quite clear that there not having been a decision on this point nonetheless the question whether the sale was void or not is now res judicata in favour of the defendant-appellant.

5. There is one argument to which I should refer and that is that in the suit itself, out of which the execution proceedings arose, Mr. Sinha contends, it must be assumed, that this very point was decided against the defendant, that is to say, it must be deemed to have been decided that the alienation was void having regard to the fact that the Court in those proceedings gave a decree for money and not a mortgage decree. We have no information as to what actually was decided in that case although we know that a money decree was passed and not a mortgage decree.

6. The decision on this point was in favour of the plaintiff. But the matter has to be looked at from another aspect. It is a choice between the decision in the trial Court and the decision in the execution proceedings. If the point was decided in favour of the plaintiff in the suit itself, then the question arises why was that point not taken in the proceedings u/s 47. The fact that it was not taken again makes the matter res judicata and we must assume that though it was not raised, although it could have been raised, it must have been decided by implication in the proceeding in execution that the question was not res judicata.

7. For these reasons in my opinion the decision of the Court below is wrong and it must be set aside and the plaintiffs suit dismissed with costs throughout. I may add that the case of Bageshwari Gharan Singh v. Bindeshwari Gharan Singhs (1932) 19 AIR Pat. 337 referred to by the learned Judge in the Court below is now concluded by the decision in the same case of their Lordships of the Judicial Committee in AIR 1936 46 (Privy Council)

Agarwala J.

I agree.