Gohintapalli Venkataramayya vs Nedunuri Venkatamutharao

Krishna Rao, J.—This is an appeal by the 1st judgment-debtor against the order of the lower appellate court confirming the order of the District Munsif of Amalapuram. by which his application under O. XXI R. 90 and S. 47 C. P. C. to set aside a sale of his properties in execution held on 12-9-1955, was dismissed.

The concurrent finding by both the courts below is that the sale was not vitiated by any irregularity, nor did the appellant sustain any substantial injury, the price fetched being not too low. These are findings of fact based on an appreciation of the evidence, and are binding in the second appeal.

The main point raised by the learned counsel for the appellant is, that there was no proper notice under O. XXI. R. 22 C. P. C. and that the sale is therefore void-Rajagopala Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, It apears from the notes paper in Execution Petition No. 347 of 1954 that notice under O. XXI. R. 22 was issued to both the judgment-debtors that it was served on both the judgment-debtors by affixture for 21-12-1954. that only the second judgment-debtor who is the brother of the first judgment-debtor, appeared, that the first judgment-debtor was declared absent and that the proceedings were continued in the 1st judgment-debtor''s absence, as provided under O. XXI R. 23. The learned counsel refers to O. 5 R. 19 and contends that where a notice is affixed the court has to declare the service sufficient, which is not shown in the notes-paper to have been done. But this point is covered by two Division Bench decisions of the Madras High Court 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, and Govinda Krishna Aiyar Vs. Sankaralinga Naicker, through his next friend and guardian ad litem, Subbia Naicker, where it was held that such a declaration may be implied by the subsequent proceedings of the court in the matter. These decisions were followed by a Single Judge in Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna Goundan, and are binding on this Court. The learned counsel seeks to distinguish the decisions on the footing of the observations of Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna Goundan, that

the court 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 sufficient, or whether the facts of the case left in some doubt the question whether there was a proper service or not.

He points out that 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 was service by affixture four times that in Govinda Krishna Aiyar Vs. Sankaralinga Naicker, through his next friend and guardian ad litem, Subbia Naicker, the return was that the judgment-debtor''s guardian was evading the notice and that in Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna Goundan, the return was that the judgment debtor refused to take the notice on the frivolous ground that his father''s name was not correct. He urges that here there is absolutely no information as to the circumstances in which the notice of the first judgment-debtor was affixed except the entries in the notes paper that he had gone to Rajahmundry. But it was the duty of the appellant to have obtained and marked the return on the notice under O. XXI R. 22 and adduced necessary evidence to show that it was improperly affixed. As he has not made any complaint throughout that he had no opportunity to adduce all his evidence, I am not inclined to accede to his belated request that the matter should be remanded in order to allow him to let in additional evidence and obtain a finding as to the circumstance in which the notice was affixed.

It appears that the second judgment-debtor. who is the brother of the first judgment-debtor was living in the same house. As already mentioned, both of them were served by affixture, but while the second judgment-debtor put in his appearance on 21-12-1952, the first judgment-debtor stayed away. In these circumstances there is ''prima facie'' no reason to think that the service by affixture was reduced to a formal ritual and was not sufficient for the first judgment-debtor''s obtaining knowledge of the execution proceedings.

The learned counsel next relies on the line of decisions the most recent of which is Adisesha Ayyar Vs. Pappammal, where Krishnaswamy Naidu J. sitting singly stated that where the principle of constructive "Res Judicata" is sought to be applied to cases of service or process on a party by affixture the requirements of O. 5 R- 19 should be proved to have been strictly complied with. Though the earlier decisions are similarly distinguished in Adhilakshmi Ammal Vs. Srinivasa Goundan alias Krishna Goundan, for the purpose of applying the principle of constructive res Judicata the two Division Bench decisions Raja Inuganti Venkata Rayanim Varu Vs. Alluri China Bapanna, represented by his natural father Alluri Sooranna, under a general power-of-attorney and Others, , and Govinda Krishna Aiyar Vs. Sankaralinga Naicker, through his next friend and guardian ad litem, Subbia Naicker, are directly in point for the purpose of the question raised under O. 5, R 19 and have to be followed.

The appeal fails and is dismissed with costs.