MANGALAMMAL Vs. T LALITHA

JUDGEMENT

(1.) THESE two revisions petitions are directed against orders dismissing cheque applications filed by the petitioners in order to withdraw the amounts in deposit in Court brought to the executing Court pursuant to orders of attachment made earlier. The respondents in both the revisions are the same while the petitioners are different.

(2.) THE petitioner in C. R. P. No. 4199 of 1987 filed a suit o. S. No. 69 of 1983 on the file of the Sub-Court, Tiuvannamalai and obtained a decree against the respondents. THE decree directed the respondents to pay the amount from out of the assets of the deceased A. V. K. V. S. Thirugnanam, the husband of the first respondent and father of other respondents. In execution of the decree the petitioner claimed a sum of Rs. 33,573-75 as due on 27-12-1987 and prayed for attachment of the amount in deposit in O. S. No. 671 of 1983 on the file of the District Munsif, Thiruvanamalai. It Was expressly stated in the execution petition that the amount in the Court of the District Munsif belonged to the deceased A. V. K. V. S. Thirugnanam, and was payable to the respondents, and therefore, liable to attachment. THE executing Court ordered notice and attachment by prohibitory order on 27. 2. 1987 and posted the matter to 17-3-1987. On 17-3-1987 the executing Court ordered fresh notice to the respondents through Court and adjourned the matter to 20-4-1987. On 20-4-1987 the executing Court recorded that the first respondent was served and notice to the second respondent was affixed as he was absent. THE executing Court proceeded to set the respondents ex parte and made the attachment absolute.

(3.) EVEN before the Code of Civil Procedure was amended in 1976, it was held by the Supreme Court as well as this Court that the principle of constructive res judicata would apply to execution proceedings. It is not necessary for me to refer to the various decisions on the subject excepting that of a Division Bench of this Court in Abdul Azeez Sahib v. Official receiver, (1958)2 M. L. J. 526. It was held in that case that when a judgment-debtor to whom notice is ordered in the execution proceedings fails to contest the application, and an order ex parte is made for sale, the effect of the order for sale is that the Court must be deemed to have decided (1) that the petitioner has a right to execute, (2) that the judgment-debtor is liable to satisfy the decree, (3) that the decree is executable, and (4) that it is not barred by limitation. It was held further that the order in an execution petition in favour of the decree holder bars investigation of any plea of limitation raised at any subsequent stage.