KANNAN Vs. GOVINDAN

JUDGEMENT

(1.) The scope and ambit of constructive res judicata in proceedings in execution come up for consideration in this second appeal. Incidentally proviso (c) to S.60 (1) of the Code of Civil Procedure is also involved in the case.

(2.) The second appeal arises out of E. A. No. 694 of 1958, being a petition filed by the appellant before me to release the property from attachment, as it is the house and site belonging to and occupied by him, who is an agriculturist. Both the lower courts have dismissed the application holding that the appellant is debarred by constructive res judicata to raise the question. Both the courts have held that he is an agriculturist and the property is his house exempted from attachment or sale under proviso (c) to S.60(1) of the Code and on that question there is no dispute in second appeal either. The question in second appeal is whether the appellant is precluded from raising his claim for exemption under proviso (c) to S.60 (1) of the Code by reason of his previous conduct, which works as constructive res judicata against him.

(3.) R.E.P. No. 746 of 1956 was filed by the original decree holder and the assignee of the decree for recognition of the assignment and for execution of the decree. In that petition the appellant was the 2nd respondent and he was personally served on 24th October 1956. He appears to have signed and affixed his thumb impression on the copy of the notice. The endorsement by him thereon was to the effect that the notice and copy were received. The wording of the notice served on him, as disclosed by the judgment of the lower appellate court, was for the recognition of the assignment and execution. The endorsement and the report of the process server, who served the notice on the appellant, was to the effect that he gave the copies to the appellant on 24th October 1956 and got his signature and thumb impression. These are the materials available for ascertaining the contents of the notice of execution served on the appellant and the effect thereof on the question of constructive res judicata. In pursuance to this notice the appellant did not appear and on 28th March 1957 the assignment was recognised and attachment ordered. The execution petition was then posted to 8th June 1957 and the attachment was actually effected on 2nd May. Finally, the execution petition was posted to 16th July 1957 for production of draft sale papers. The draft was produced on 19th August and eventually notice was ordered on the draft sale proclamation to the appellant. When the appellant got notice of the draft sale proclamation, he put in his objection stating that the property was not liable for attachment nor for sale, as he was entitled to the benefit of proviso (c) to S.60 (1), Code of Civil Procedure. The execution court held that the appellant was debarred from raising the question at that stage because of constructive res judicata, since he failed to raise the objection at the time of attachment, of which he was duly served; and directed his objection to be recorded. Consequently, the appellant filed E.A. No. 694 of 1958, which has given rise to the second appeal.