Constructive res judicata in execution bars belated limitation objections after notice and preserves finality of earlier stages.

A judgment-debtor who was served with notice in execution and failed to object under Order XXI Rule 22 CPC was held barred from later challenging execution on limitation, because constructive res judicata applies to execution proceedings and a plea that could and ought to have been raised earlier cannot be reopened at a later stage. The text also states that, in execution of a mortgage decree, mortgaged immovable property is not exempt from attachment before sale; attachment serves a separate prohibitory function from the mortgage security itself. Once execution advances beyond the noticed stage without challenge, that stage attains finality unless the relevant order is set aside in accordance with law.

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Issues: (i) Whether a judgment-debtor, after service of notice in execution and failure to object at the stage under Order XXI Rule 22 of the Code of Civil Procedure, 1908, is precluded from later challenging the execution on the ground of limitation by the principles of res judicata and constructive res judicata. (ii) Whether, in execution of a mortgage decree, the mortgaged immovable property must still be attached before sale and whether the earlier procedural stage in execution attains finality absent challenge.

Issue (i): Whether a judgment-debtor, after service of notice in execution and failure to object at the stage under Order XXI Rule 22 of the Code of Civil Procedure, 1908, is precluded from later challenging the execution on the ground of limitation by the principles of res judicata and constructive res judicata.

Analysis: The execution court had issued notice, afforded opportunity to object, and proceeded to the next stage when no objection was filed. The legal question was whether limitation, though affecting the maintainability of proceedings, could still be raised later. The decision relied on the settled principle that an erroneous decision by a court having jurisdiction is not a nullity and binds the parties unless corrected in the manner provided by law. The principle of constructive res judicata was held applicable to execution proceedings, and to subsequent stages of the same proceedings, so that a plea which could and ought to have been raised earlier cannot be reopened later.

Conclusion: The judgment-debtor was barred from raising the limitation objection at the later stage, and the plea was rejected.

Issue (ii): Whether, in execution of a mortgage decree, the mortgaged immovable property must still be attached before sale and whether the earlier procedural stage in execution attains finality absent challenge.

Analysis: The contention that mortgage security dispenses with attachment was rejected. Attachment under Order XXI Rule 24 of the Code of Civil Procedure, 1908 was treated as a separate procedural requirement that restrains alienation and marks the stage preceding sale. The court held that a mortgage creates a security interest, whereas attachment operates as a prohibitory process in execution; the two are not equivalent. It was further held that when the court has proceeded under Order XXI Rule 22 and advanced the execution to the next stage, that stage attains finality unless the relevant order is challenged, and the debtor cannot revert to an earlier stage by raising objections belatedly.

Conclusion: Attachment was held necessary in the execution process, and the mortgaged property was not exempt from the ordinary execution procedure.

Final Conclusion: The objections to execution were held to be barred, the execution proceedings were allowed to continue, and the appeal failed.

Ratio Decidendi: In execution proceedings, a plea that could have been raised after notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908 but was not raised before the court advanced to the next stage is barred by constructive res judicata, and an erroneous order by a court having jurisdiction binds the parties until set aside in accordance with law.

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