ADISESHA AYYAR Vs. PAPPAMMAL

JUDGEMENT

(1.) The question for decision in this second appeal is whether defendant 2, (judgment-debtor) was precluded from raising her objection to the attachment of the properties by reason of the orders made in previous execution petitions, i.e., E. P No. 1661 of 1936 and E. P. No. 1165 of 1940 on the file of the same Court. The appellant (decree-holder) obtained a decree in O.S. no. 621 of 1930 against defendant 1 "the mother of defendant 2, for Rs. 480 and for cost" and in E. P. No. 687 of 1933 applied for attachment and sale of certain properties, some properties were sold in execution of the decree and the decree-holder purchased the same. Defendant 1, who is the mother, died some time in September 1936, E.P. No. 1661 of 1936 was filed on 3rd November 1933 for the balance of the decree amount and the mode in which the assistance was sought in the execution petition was to implead defendant 2, who was her only daughter as her legal representative and for attachment and sale of the immovable properties belonging to defendant 1, and described in the schedule to the said petition. On this execution petition notice was ordered to defendant 2 for 5th December 1936. The following endorsement appears on the petition : "Defendant 2 affixed. V. M. attests. L. R. of defendant 1 to be added as defendant 2. Attach item 1. D. 2 absent. L. R. of D. 1 added as D.

(2.) Attach item 1. 7th January 1937. Initialled. D. M. 5th December 1936". I perused the endorsement in the original execution petition and I find that the order made by the learned District Munsif was only "D. 2 absent. L. R. of D. 1 added as D. 2. Attach item 1." The other endorsements are apparently made by the office. Then in pursuance of that attachment sale papers were filed and sale notices were issued by the order of the learned District Munsif dated 18th March 1937 returnable on 9th April 1937. On 9th April 1937 the order of the learned District Munsif was that "defendant absent; proclamation of sale on 6, 7 and batta is three days". There too an endorsement of the office papers as "D. 2, respondent affixed. V. M. attests." There was also an application taken by the decree holder, E. A. No. 1080 of 1937 for permission to bid and set off and this application is said to have been personally served on 10th August 1937 and the thumb impression of defendant 2, is stated to have been taken. On 28th September 1937 lot No. 1 was sold, the decree-holder himself purchasing it and the sale was confirmed on 1st November 1937.

(3.) The present Execution Petition No. 160 of 1943 was filed on 4th March 1943 for recovery of the balance still due and for attachment and sale of the immovable properties mentioned in the schedule. The objection to this E. P. was, among others, that the properties were not liable to be attached as they were not the properties of defendant 1. A plea of res judicata was raised by the decree-holder appellant that by reason of the earlier execution petition it was not competent for defendant 2, to raise the question as the properties that were sought to be attached in the present execution petition were attached in E. P. No. 1661 of 1936 to which defendant 2, was a party. It may be stated that there is no dispute that the properties that were sought to be attached in the present E. P. were attached in E. P. No. 1661 of 1936 to which defendant 9, was added as a party, but the contention of defendant 2, is that she had no notice of the Execution Petition No. 1661 of 1936, that she was not properly served, and that therefore she was not bound by the decision in that execution petition. Both the Courts found in her favour and the appeal is by the decreeholder.