Adisesha Ayyar vs Pappammal

Krishnaswami Nayudu, J.—The question for decision in this second appeal is whether defendant 2, (judgment-debtor) was precluded from

raising her objection to the attachment of the properties by reason of the orders made in previous execution petitions, i.e., E. P No. 1661 of 1936

and E. P. No. 1165 of 1940 on the file of the same Court. The appellant (decree-holder) obtained a decree in O.S. no. 621 of 1930 against

defendant 1 ""the mother of defendant 2, for Rs. 480 and for cost"" and in E. P. No. 687 of 1933 applied for attachment and sale of certain

properties, some properties were sold in execution of the decree and the decree-holder purchased the same. Defendant 1, who is the mother, died

some time in September 1936, E.P. No. 1661 of 1936 was filed on 3rd November 1933 for the balance of the decree amount and the mode in

which the assistance was sought in the execution petition was to implead defendant 2, who was her only daughter as her legal representative and

for attachment and sale of the immovable properties belonging to defendant 1, and described in the schedule to the said petition. On this execution

petition notice was ordered to defendant 2 for 5th December 1936. The following endorsement appears on the petition :

Defendant 2 affixed. V. M. attests. L. R. of defendant 1 to be added as defendant 2. Attach item 1. D. 2 absent. L. R. of D. 1 added as D. 2.

Attach item 1. 7th January 1937.

Initialled. D. M.

5th December 1936"".

I perused the endorsement in the original execution petition and I find that the order made by the learned District Munsif was only ""D. 2 absent. L.

R. of D. 1 added as D. 2. Attach item 1."" The other endorsements are apparently made by the office. Then in pursuance of that attachment sale

papers were filed and sale notices were issued by the order of the learned District Munsif dated 18th March 1937 returnable on 9th April 1937.

On 9th April 1937 the order of the learned District Munsif was that ""defendant absent; proclamation of sale on 6, 7 and batta is three days"". There

too an endorsement of the office papers as ""D. 2, respondent affixed. V. M. attests."" There was also an application taken by the decree holder, E.

A. No. 1080 of 1937 for permission to bid and set off and this application is said to have been personally served on 10th August 1937 and the

thumb impression of defendant 2, is stated to have been taken. On 28th September 1937 lot No. 1 was sold, the decree-holder himself purchasing

it and the sale was confirmed on 1st November 1937.

Subsequently, the decree holder in order to realise the balance still due under the decree, filed E. P. No. 1165 of 1910 for attachment and sale

of the rights of defendant 1''s husband in a usufructuary mortgage executed in his favour dated 28th October 1911. In that execution petition as

well notice was taken out to defendant 2, and her thumb impression appears to have been affixed and the learned District Munsif held that the

service was sufficient. That E. P. was not however pressed and it was dismissed.

The present Execution Petition No. 160 of 1943 was filed on 4th March 1943 for recovery of the balance still due and for attachment and sale

of the immovable properties mentioned in the schedule. The objection to this E. P. was, among others, that the properties were not liable to be

attached as they were not the properties of defendant 1. A plea of res judicata was raised by the decree-holder appellant that by reason of the

earlier execution petition it was not competent for defendant 2, to raise the question as the properties that were sought to be attached in the present

execution petition were attached in E. P. No. 1661 of 1936 to which defendant 2, was a party. It may be stated that there is no dispute that the

properties that were sought to be attached in the present E. P. were attached in E. P. No. 1661 of 1936 to which defendant 9, was added as a

party, but the contention of defendant 2, is that she had no notice of the Execution Petition No. 1661 of 1936, that she was not properly served,

and that therefore she was not bound by the decision in that execution petition. Both the Courts found in her favour and the appeal is by the

decree-holder.

The learned counsel for the appellant argues that in so far as the order in E. P. No. 1661 of 1938 was concerned, since it was made after notice

was ordered to defendant 2 even though there was no declaration, it must be held to be sufficient notice in law, the notice having been affixed and

the Court having declared her ex parte brought her on record and directed the attachment. The second contention is that in any event the order in

E. P. No. 1165 of 1940, though the petition was dismissed was made after notice to the second defendant was held to be sufficient and a

declaration was made to that effect and as such by reason of E. P. No. 1165 of 1940 it was not competent for defendant 2 to raise an objection to

the attachment in the present execution petition.

As regards the first contention, Order 5 Rule 19, Civil P. C., lays down the procedure to be followed in considering and deciding as to what is

the proper service in regard to summons which is also applicable to notices. Order 5 Rule 19 reads as follows:

Where a summons is returned under Rule 17 the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer,

and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings

and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service

as it thinks fit.

In this case, from the endorsement I am unable to say that the learned District Munaif has proceeded under Rule 19. He appears to have accepted

the endorsement of the office, ""D 2 affixed. V. M. attests"", as sufficient compliance of what is required under Rule 19. The learned counsel,

however relies on a decision in Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna Goundan, where it was held that in regard to service one

has to consider the facts of each case and decide on those facts whether the failure to declare a judgment-debtor ex parte was a mere omission,

and, the subsequent procedure made it clear that the Judge did consider the service of notice, sufficient, or whether the facts of the case left in

some doubt the question whether there was a proper service or not. In that case it was held that the defendant refused service on the frivolous

ground that his father''s name was not correct, despite the fact that his father was served at the same time and was a party to the same proceedings

and that the executing Court should have considered the service sufficient. The learned Judge held that the failure in that case to declare the

judgment-debtor as ex parte was a mere omission and the subsequent procedure made it clear that the Judge did consider the service sufficient.

Reliance on the circumstances and the nature of the execuse for not receiving, the summons was also taken into account and I do not think that the

facts of the present case would warrant the application of the principle laid down in Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna

Goundan, .

The learned counsel has also relied on the decision in Raja Inuganti Venkata Rayanim Varu Vs. Alluri China Bapanna, represented by his natural

father Alluri Sooranna, under a general power-of-attorney and Others, . There the question of service was considered in an application for setting

aside an ex parte decree. he learned Judges observe that:

Even though it is desirable that all Courts should observe the mandatory prevision of Order 5, Rule 19 and ''either declare that the summons baa

been duly served or order such further service as it thinks fit'', the absence of such an express declaration will not involve as a necessary

consequence a finding that a summons has not been duly served.

There is this circumstance in that case that the learned Subordinate Judge held that the appellant really knew all about the suit as it was going on.

The other case is Govinda Krishna Aiyar Vs. Sankaralinga Naicker, through his next friend and guardian ad litem, Subbia Naicker, which refers to

the decision in Raja Inuganti Venkata Rayanim Varu Vs. Alluri China Bapanna, represented by his natural father Alluri Sooranna, under a general

power-of-attorney and Others, . That is a case of declaring a guardian of defendants ex parte. There what happened was that notice was taken out

and the return of notice was that the guardian was evading service. On this return being brought to the notice of the Court the Court declared the

defendants ex parti.

I do not think that the failure to comply strictly with what is laid down in Order 5 Rule 19 could be applied to a case of this kind where

defendants is to be precluded from raising the plea which is open to her by application of the constructive principle of res judicata. It is essential

that in such cases it should be satisfactorily proved that she was a party to the earlier proceedings and was properly served. Admittedly there was

no personal service of the E. P. and the service, which is sought to be relied upon, is the endorsement of the office that notice has been affixed and

the V. M. has attested it. The V. M. was not examined, nor was the process-server, and the Court has not applied its mind and held that it was

sufficient. The principle of res judicata should be applied very cautiously to E. Ps. The learned counsel for the respondent Mr. Srinivasan, has cited

Azhagappa Chetti, by mother and guardian Oonnamalai Ammal Vs. S.A. Ramanathan Chettiar, which correctly appreciates the position regarding

the application of the principle of constructive res judi-cata in E. PS. and with reference to the service of notice, it was held that :

When a notice of an execution application is ordered by Court to be served on the defendant and the notice has to be affixed to the door of the

dwelling house owing to the reported absence of the defendant. The Court must either declare it sufficient or order such service as it thinks fit, as it

is imperatively required to do so under Order 5 Rule 19, Civil P. C and in a case where it is sought to apply the constructive principle of res

judicata against the defendant, (he omission of the Court to make such a declaration as enjoined by the Code is fatal.

That judgment was again reiterated by Pakenham Walsh J. in A. Ramaswami Chettiar Vs. Chinnappa Chetty, It was also argued that in any event

defendant respondent 2 had notice of the subsequent proceedings relating to sale where there was a personal service by reason of the affixture of

the thumb impression in the notice issued on the application for leave to bid (E. A. No. 1080 of 1937) and as regards the notice of the settlement

of the sale proclamation, but I do not think that notice was sufficient as it was not open to her at this stage to raise an objection that the properties

that are sought to be sold are not liable to be proceeded against (vide Chidambaram Chetti v. Theivannai Ammal, 46 Mad. 768: A. I. R. 1924

Mad. 1.

The other contention of the appellant that in any event E. P. No. 1165 of 1940 filed by the appellant for attachment of the usufructuary mortgage

debt in which notice was affixed and where there was a declaration that the service was sufficient, would be a bar to the raising of the plea that the

properties which are the subject-matter of the present execution, petition are not liable to be attached. The simple answer to that objection is that

the properties that were sought to be attached and sold in E. P. No. 1165 of 1940 are different from the one in the present execution petition. The

issue that could be said to be res judicata is whether the property belonged to defendant 1 or not and the property being different it cannot be said

that the decision in respect of owner ship of one property could be a decision with regard to the ownership of a different property.

In the result, the appeal is dismissed with costs.