(1.) The second defendant, one of the three judgment-debtors, is the appellant before this Court. This appeal has arisen out of an execution petition put in by the decree-holder. The facts are a little complicated, and though it is not necessary to retail all the facts, it is necessary to set out the following for understanding the contentions on both sides:
(2.) The decree in this case was passed so long ago as March 1898 in favour of one Arunachallam Chettiyar. There were several execution petitions by the said decree-holder himself. The decree is then alleged to have fallen, in a partition between two members of the decree holder s family and a partner of the family firm, to the share of the said partner who also held a power of attorney from the decree-holder. This partner filed execution petitions in 1905 and 1907. Finally on the 21st April 1909, Execution Petition No. 389 of 1909 was filed by a next friend on behalf of the minor son of the said partner after the death of the latter.
(3.) We must here state that the decree was passed by the District Mansif ti Oourt of Srivilliputtur and all these applications including the Execution Petition No. 38 of 1909 of 21st April 1909 ware instituted in that Court. On this application No. 389 of 1909, notice was ordered to be issued to defendants to show cause why the decree should not be executed by sale of properties which had been attached long ago and which attachment was still subsisting. For the purpose of this appeal, it is necessary only to consider the notice issued to the second defendant, that notice having been issued in July 1909 by the Srivilliputtur Munsif s Court for second defendant s appearance on 10th August 1909 to show cause against execution. The process-server took the notice to the second defendant s village on 31st July 1909 for service on the second defendant. What took place there appears from the endorsement of the Village Munsif on the process-server s return and that endorsement is as follows:--"On enquiry made on 31st July 1909 at 9 A.M., regarding the second defendant, the females in the second defendant s house and the inmates of the adjoining house state that it is two days since he went to Sankaranayinarkoil, that the date of his return is not known and that no proper male heir is present on the spot; the duplicate of the notice to the said second defendant is affixed to the front door of his house." With a return to this effect, the process- server returned the notice to the Court on the 6th August 1909, on the 10th August 1909 (which was the date fixed in the notice for the second defendant to appear to show cause), the District Munsif made a record to this effect "Notice affixed, defendant absent, adjourned to 14th instant for batta for proclamation." (The learned District Judge seems to have thought that the 10th August 1909 was a mistake for the 10th December 1909 but it seems that there is no such mistake and the order was really passed on 10th August 1909 by the Munsif. On 18th October 1909, the proclamation was settled and the sale date was fixed for 10th December 1909. The sale fixed for 10th December 1909 seems to have been again adjourned to some other date in 1910 on account of certain other proceedings which it is unnecessary to detail.