A RAMASWAMI CHETTIAR Vs. CHINNAPPA CHETTY

JUDGEMENT

(1.) IN this case the only matter which has been argued before me in second appeal is that even though the application for arrest on 26 November, 1923, might have been out of time, the fact that the Court ordered notice on it renders the matter that it was in time res judicata. This notice is the only one attempted to be served on the respondent, the 1 defendant in the case. The return that was made on it is, "1 defendant is absent. It is learnt that he went to Salem and other places. The notice was fixed on the outer door". It was not stated that this information was given to the process-server at the house of the 1 defendant nor who gave him the information. With regard to this, in the B Diary there is a note against 9--1--1924, "N. S. A. Arrest by 29--1--1924". I understand that "N.S.A." stands for "Notice served: absent". There was no declaration by the Court under Order 5, Rule 19, Civil Procedure Code, that the notice was duly served. That this is not a due service for the purpose of creating constructive res judicata has been held in several cases. IN Subramania Pillai V/s. Subramania Aiyar (1897) I.L.R. 21 Mad. 419 : 8 M.L.J. 84 the Court set aside a decree passed after such service. See also Abraham Pillai V/s. Donald Smith (1906) I.L.R. 29 Mad. 324 and Baldeodas Lohia V/s. Subkarandas Goenka (1924) I.L.R. 52 Cal. 179 at 186. IN Sundararajulu Naidu V/s. Narayanaswami Naidu Srinivasa Aiyangar, J., in a case very much like the present, held that where on the basis of service the rule of constructive res judicata was sought to be availed of, such service must have been declared to be sufficient. This decision was followed by Bards-well, J., and myself in Azhagappa Chetti V/s. Ramanathan Chettiar (1932)61 M.L.J. 629 and we distinguished in that case the one which has been quoted now for the appellant, namely, Mahomed Meera Rowther V/s. Kadir Meera Rowther 1914 M.W.N. 63. IN that case there was a petition to set aside a sale for want of proper service of an attachment notice. Nusur Mahomed V/s. Kazbai (1886) I.L.R. 10 Bom. 202 referred to in that case and IN re Sri Krishna Doss (1908) 19 M.L.J. 31, a case of refusal of notice, do not deal with the question of constructive res judicata in execution applications. IN Farangu V/s. Hari Kishan A.I.R. 1929 Lah. 334 the Court held that the acceptance of the service of such summons by the Court which issued it without any declaration was not conclusive on the matter of the service. Gyanammal Vs. Abdul Hussain Sahib (1931) I.L.R. 55 Mad. 223: 61 M.L.J. 920 also allows a party to allege that the notice was not duly served on him when such service was sought to be used against him for the purpose of constructive res judicata. It was remarked in Subramania Aiyar V/s. Raja Rajeswara Dorai (1916) I.L.R. 40 Mad. 1016 that the principle of constructive res judicata should be very cautiously applied to execution proceedings, especially where there is any indication that improper services were- being attempted and then the execution dropped in order that such notice may afterwards be argued as res judicata on the question of limitation. Both the Lower Courts have found as a matter of fact in this case that there was no proper service and that therefore the 1 defendant had no opportunity, of raising the plea of limitation.

(2.) IN the result the second appeal fails and is dismissed with costs.