Sundararajulu Naidu vs Narayanaswami Naidu

Srinivasa Ayyangar, J.—On this civil revision petition the decree-holder has applied to this Court to revise the order of the Small Cause

Judge of Kumbakonam dismissing the decree-holder''s petition for execution on the ground that it was barred by the law of limitation.

It has been argued by the learned vakil for the petitioner that there had been an execution application before the present one, namely E. P. No.

4095 of 1924 and that thereon after service of notice on the judgment-debtors an order was made by the Court directing execution of the decree.

No doubt, when an application is made for execution of a decree and notice of the application is served on the judgment-debtors, they are bound

to appear if for any reason they should regard themselves as entitled to contend that the decree of which execution is sought is not there or then

executable. The executability of the decree being one of the matters to be considered by the Court, the judgment-debtors were bound to appear

and show cause why execution should not be ordered if they had any cause to show. If they fail to appear and show cause, and if on such failure

an order ex parte should be made by the Court directing execution, then the question of the executability of the decree should according to the law

of constructive res-judicata be regarded as having been decided by the Court in favour of the decree-holder on the general principle that an

opportunity having been afforded to the judgment-debtors to show cause against it, they failed to show cause and that any ground that they might

have and should have taken with regard to the executability of the decree having been failed to be taken by them should be deemed to have been

decided against them. Mr. Jayarama Aiyar for the respondents has attempted to raise the question whether the rule of constructive res judicata in

such a case could be resorted to when the parties are not personally served. To hold that in cases where parties are not personally served the rule

would not be available would be to give premium to parties seeking to evade service of proper processes of the Court. All that is necessary under

the law is that they should be properly served, served according to the rules relating to service. Under Rule 2, Order 48, Civil P. C., generally, all

notices and processes under the Procedure Code are required to be served in the same manner in which summonses in suits have been directed to

be served, that is by personal service if possible, and if that should be found not feasible, in any of the other ways indicated in the rules relating

thereto. Then Order 5, Rule 19, provides 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 enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such a

service as it thinks fit.

This order distinctly provides for the Court declaring such service as has been effected to be good, if it should be of the opinion that the service

was sufficient and proper. No doubt the rule further proceeds and requires that in the event of the Court holding the service insufficient it should

order such service as to it sees fit, It has been argued by the learned vakil for the petitioner that the fact in this case, that the Court proceeded after

referring to the absence of the judgment-debtors to order execution must be regarded as impliedly including a declaration to the effect that the

service was sufficient and proper. I am unable to accede to that contention. I am not sorry for my being unable to accede to the contention

especially having regard to the unfortunate practice that has grown up at any rate in this presidency, of not paying sufficient attention to the service

of processes. When the law requires that the Court should declare the proper service of a notice or process, the mere omission to make such a

declaration is not in my opinion a mere irregularity. Whatever it may be in ordinary cases, I am satisfied that when the rule that is sought to be

invoked is the rule of constructive res judicata, the rules relating to proper service of notices cannot be too strictly adhered to. In the present case

on this execution application, namely E. P. No. 4095 of 1924 all that the learned Judge has said in this; ""Absent ........Arrest, defendant 2, 25th

November 1924,"" which means, I take it, that the person should be arrested and produced before the Court on or before that date. No doubt

there is an office note before this order of the Judge as follows:--""defendants affixed 7th November 1924 as defendant 1 gone out, driving out, his

wife said"". There is, therefore, in my view, no declaration by the Court of the sufficiency of service of notice within the meaning of Rule 19, Order

5, Civil P. C. Mr. Jayarama Aiyar in this connexion referred to the case of Vellayappa, Chetty v. Veerappa Chetty [1914] 1 L. W. 1 There the

learned Judges, Sadasiva aier and Tyabji, JJ., held that in a case in which the Subordinate Judge noted as follows. ""Defendants 1, 2, 5 and 6

absent. ex parte"" the Subordinate Judge was legally justified in making such a declaration, taking the words written by the Subordinate Judge to

amount to such a declaration.

For my part it seems to me that when the law requires the Court to make a formal declaration about the propriety of the service, it requires the

Court to pronounce upon such propriety in a judicial manner and it is obvious that the sufficiency or otherwise of the service required to be

decided on by the Court should not be left merely to the office. I hold therefore that such a formal declaration of the propriety of service is really

necessary, at any rate, in all cases in which on the basis of such proper service the rule of constructive res judicata is sought to be availed of. There

is no such declaration in this case by the learned Judge.

It follows from this that the order that was made directing execution on the execution petition of the 8th October, namely E. P. No. 4095 of

1924 was not an order with regard to which the respondents, judgment-debtors, had really an opportunity to show cause against the executability

of the decree.

The decision on this point is sufficient to dispose of the petition. In that view it is not necessary to decide the further question that has been raised

and argued on behalf of the petitioner that with respect to applications for execution the provisions of Order 9 do not apply. The decisions with

regard to that matter are conflicting, both in this Court and elsewhere, and as a determination of that question is not necessary for the purpose of

this case, I do not propose say anything about it.

I may, however, before concluding, observe that there is considerable force in the argument put forward by Mr. Jayarama Aiyar on behalf of the

respondents with regard to the probable fraud perpetrated by the petitioners for the purpose of escaping the bar by limitation. It is significant that

after obtaining an order for arrest on the said execution petition they do not take any steps, but that their pleader reports to the Court that he does

not require a warrant to be issued pursuant to the order for arrest. It is obvious that if the judgment-debtors had been arrested pursuant to any

such order, it would have been open to them to come to Court and point out to the Court that they have been wrongfully arrested in execution of a

decree which had become barred by the law of limitation. But if the order for arrest obtained by the decree-holders should be allowed to remain

on record and nothing more done in respect of that application, it was apparently foreseen and provided carefully that in respect of any fresh

application for execution the plea of bar by limitation on the part of the judgment-debtor may be successfully avoided or met. The learned

Subordinate Judge in para. 8 of his judgment states as follows with regard to the previous application.

Nor can it be said that the service by affixture of the notice was sufficient enough to estop them from questioning the plaintiff''s right to execute the

decree subsequently. In the affidavit filed by the plaintiff along with the above execution application, defendants have stated that the notice of

execution was not served upon them and the plaintiff had fraudulently arranged and obtained a false return of service with the object that the

defendants should not become aware of the same. The plaintiff''s subsequent conduct in asking the Court not to issue the arrest warrant also looks

very suspicious.

Though the finding is not as clear as could be wished, I certainly am inclined to regard that as a finding, as near as may be, by the Subordinate

Judge to the effect that it was by a fraud practised by the decree-holders that the proceedings of the Court were got recorded by them with a view

eventually, to prevent the judgment-debtors from raising, at any rate raising successfully the bar of limitation. I am not disposed to consider the

inference arrived at by the learned Subordinate Judge as either far-fetched or improbable.

The learned Subordinate Judge has also relied upon the inherent powers of the Court, for the purpose of treating as a nullity the order for

execution passed on the previous execution petition in the circumstances. Though I should myself be prepared to hold that there is always an

inherent power in every Court to see that no fraud is allowed to be perpetrated and to prevent any miscarriage of justice by reason of any fraud

perpetrated by parties to proceedings, it seems to me, however, that the decision on this petition may be rested on the small and simple ground that

there has been no proper declaration of service of notice of the previous application and that therefore the rule of constructive res judicata is not

available to the petitioners. It is not contended before me that if that rule is not available the present petition for execution could in any other way

be regarded as not barred by the law of limitation. I therefore hold that the conclusion arrived at by the lower Court was right.

The petition is therefore dismissed with costs.