Constructive res judicata barred a late objection to saleability of tenancy land in execution, so the sale stood.

In execution proceedings, a judgment-debtor was barred by constructive res judicata from objecting to sale of kasht lands on the ground that they had become non-saleable under the amended Bihar Tenancy Act. The court held that constructive res judicata applies generally in execution and covers objections that might and ought to have been raised at the proper stage; notice, attachment, sale and confirmation were judicial acts inconsistent with a later claim that the property was not saleable. Because the debtor had notice and failed to object before sale, the challenge could not be entertained even though the sale was alleged to be void under statute. The sale therefore could not be set aside.

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Issues: Whether, in execution proceedings, the judgment-debtor was barred by constructive res judicata from objecting to the sale of his kasht lands on the ground that they had become non-saleable under the amended Section 49-M of the Bihar Tenancy Act.

Analysis: The execution proceedings had reached the stages of notice, attachment, order for sale, sale, and confirmation of sale. The relevant statutory prohibition against sale of the right of a raiyat belonging to the protected classes had come into force, and the judgment-debtor, though having notice and opportunity, did not raise the objection before the sale was held. The Court held that the principle of constructive res judicata is of general application in execution proceedings and extends to objections which might and ought to have been raised at the appropriate stage. An order for sale, the holding of the sale, and the confirmation of sale are all judicial acts inconsistent with the claim that the property was not saleable, and therefore the matter must be treated as having been decided against the objector when he failed to raise it in time. The Court further held that the objection could not be entertained merely because the sale was alleged to be void under the statute, and it found it unnecessary to decide limitation and constitutional validity once the plea of constructive res judicata succeeded.

Conclusion: The objection to saleability was barred by constructive res judicata, and the sale could not be set aside.

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