ADHILAKSHMI AMMAL Vs. SRINIVASA GOUNDAN ALIAS KRISHNA GOUNDAN

JUDGEMENT

(1.) The execution petition out of which this second appeal arises was marked as E.P. No. 728 of 1940 and was filed on 25 June 1940. The preceding execution petition on which a final order was passed was E.P. No. 270 of 1937, which was dismissed on 25 June 1937. That application was admittedly out of time; but the question is whether the respondent, judgment- debtor 2, is entitled to raise that plea in this application in view of the fact that he did not raise it in E.P. No. 270 of 1937. The first Court held that in accordance with the principle of constructive res judicata, he was precluded from raising that objection in the present execution proceeding. In appeal, the present respondent put forward two reasons why he was not estopped from raising this objection. One was that he was not properly served in that suit, and so had no opportunity of raising the objection; and, secondly, that as that petition was dismissed shortly after the date fixed for his appearance, there was no occasion for him to file any application either to set aside the ex parte decree or to appeal. The respondent also contended that even if he had been served no occasion arose on which he was bound to raise the question of the executability of the decree; because the only notice he received was one under Order 21, Rule 66, Civil P. C. He relied on a Full Bench decision of this Court in Chidambaram Chetti V/s. Theivanai Ammal( 24) 11 A.I.R. 1924 Mad. 1, in support of his contention. The lower appellate Court, although of opinion, that this decision did not apply to the facts of this case, held that as the executing Court had failed to declare that service was sufficient, he was not properly served and that therefore the principle of constructive res judicata could not be applied.

(2.) Although it is true that E.P. No. 270 of 1937 was dismissed shortly after the date fixed for the appearance of the defendant, that would not mean that the earlier order "proclaim and sell" was not an order that was binding on him, with its implication of executability. If, for example, defendant 2 had appeared and raised the question of executability, the Court would have had to consider whether the decree was executable or not; and if a decision adverse to defendant 2 had been passed, there can be no doubt that that decision would have been final between the parties, even though shortly afterwards the petition had been dismissed; for the order would have been separately appealable. Similarly, such an order would have been final and conclusive against any person who had failed to raise a defence to the executability of the decree, despite the fact that the execution petition was subsequently dismissed : vide Lakshmanan Chetti V/s. Palaniappa Chetti and Venkata Ranga Reddi V/s. Chinna Seethamma ( 41) 28 A.I.R. 1941 Mad. 440.

(3.) It is true that Chidambaram Chetti V/s. Theivanai Ammal ( 24) 11 A.I.R. 1924 Mad. 1 bears some resemblance to the present case, in that the appellant here seems to have asked the Court to issue a notice to the judgment-debtors under O.21, Rule 66, which relates to the settlement of the terms of proclamation, and not under Order 21, Rule 22, which relates to the executability of the decree. We do not however know what the terms of the notice were. We must assume that as an order under Order 21, Rule 22 was necessary, in view of the fact that more than two years had elapsed from the date of the decree, the notice was under Order 21, Rule 22, as well as under Order 21, Rule 66. That defendant 2 realised that he could raise objections to the executability of the decree is shown by the fact that he later asked the Court to limit the sale to certain items of property. The learned Judges in the Full Bench decision were at pains to point out that their decision was limited to the facts of that case; and it can be distinguished on the ground that no notice under Order 21, Rule 22 was there necessary and none was sent.