GOPALAN NAIR Vs. NARAYANA MENON

JUDGEMENT

(1.) Decree holder auction purchaser is the appellant in this second appeal. The second appeal relates to an order in execution. The suit was one for money. There were 12 defendants in the suit. The decree that was passed in the case made only the first defendant liable for the plaint claim. On 8-3-1125 the decree holder applied for attachment and sale of first defendant's interest in two items of properties. The attachment was effected on 15-3-1125. On 22-4-1125 the decree holder applied for proclamation and sale of the properties that were attached. In the schedule of properties filed along with the draft proclamation the interest that was sought to be proclaimed and sold was described to be the interests of the defendants and not of the first defendant alone, although what was attached was only the first defendant's interest. The first defendant was the guardian for the suit of defendants 5 to 12 who were minors. When notice of proclamation was issued to the first defendant he filed a statement to the effect that defendants 5 to 10 had attained majority. They were accordingly impleaded as majors and notices were issued to them. The notices issued to defendants 6, 7, 9 and 10 were served on the first defendant on the ground that those defendants were not in their house when the process server went there to serve the notices. Copies of the draft proclamation were also not sent along with the notices. None of the defendants objected to the draft proclamation filed by the decree holder and the properties were put up for sale on the basis of that proclamation. The decree holder purchased the properties on 30-9-1950 for Rs. 125, 8 as. 2 pies and the sale was confirmed on 1-11-1950. The properties were delivered to the auction purchaser on 14-11-1950. On 23-11-1950 the 6th defendant filed M.P. 3578 for getting aside the sale on the ground of fraud and material irregularity. On the same day he filed M.P. 3580 for redelivery of the properties with mesne profits on the ground that the properties belonged to the defendants in common and that they were wrongly sold for the decree against the first defendant. M.P. 3578 was dismissed on the ground that it was barred by limitation. M. P. 3580 was allowed and the 6th defendant was directed to be put in possession of the properties. He was also awarded mesne profits at the rate of 141 paras of paddy a year from the date of dispossession. The appeal filed by the decree holder auction purchaser from this order was discussed by the lower appellate Court. That Court however reduced the mesne profits to 30 paras of paddy a year

(2.) It is not disputed that the properties sold in auction belong to the defendants in common. The first defendant is only one of the coowners. Under the decree the first defendant alone was liable for the decree debt. The argument advanced on behalf of the appellant is that so far as the application for redelivery is concerned the only question to be considered by the court is whether the interests of all the defendants have actually been sold in auction and not whether they could be sold under the decree. According to the learned counsel though it was wrong on the part of the court to have sold the rights of all the defendants in the properties when the decree was only against the first defendant and though the sale was liable to be set aside on that ground, yet so long as the interests of all the defendants were actually sold by the court, the 6th defendant is not entitled to get redelivery of the properties unless the sale is set aside. The question for consideration is whether, in a case in which properties belonging to persons who are parties to the suit but who are not liable to pay the decree debt are sold in execution of the decree against the judgment debtor and delivered to the auction purchaser, they can seek redelivery under O.21, 'R.100. O.21, R.100(1) provides:

(3.) But it was argued for the appellant that the order for sale of the interests of all the defendants in the properties is binding on the 6th defendant and that his petition is barred by res judicata. If an order in execution is to operate as res judicata certain conditions have to be satisfied. In the first place the question whether the interests of all the defendants could be sold for the decree against the first defendant should have been raised in execution and heard and decided by the court. There is nothing to show that the notices issued to defendants 2 to 12 before settling the proclamation indicated that the decree holder sought to sell their interests in the properties. It has also to be established that the notices have been properly served on them. As stated already, under R.66 (2) C. P. C. notice of the draft proclamation need be given only to judgment debtors and not to defendants who are not judgment debtors. In this case notices issued to defendants 6, 7, 9 and 10 were not duly served on them. The endorsement of the process server on the notices does not show that any attempt was made by him to effect personal service of the notices. The defendants were also not served with copies of the draft proclamation. So long as there was no decree against defendants 2 to 12 they were obviously not interested in objecting to the proclamation. In the circumstances I do not think that the order for sale passed by the court will operate as res judicata so far as defendants 2 to 12 are concerned. It was held by the Madras High Court in Azhagappa v. Ramanathan (64 MLJ 629) that an order in execution will not operate as res judicata against a party on whom notice of the execution was not duly served. In Mitta Sahib v. Gurunath (208 1C 418) it was held that if the notice did not clearly specify the nature of the claim the order passed would not operate as res judicata. Wassoodew, J. observed thus in that case: