SUNDARARAJULU NAIDU Vs. NARAYANASWAMI NAIDU

JUDGEMENT

(1.) On this civil revision petition the decree-holder has applied to this Court to revise the order of the Small Cause Judge of Kumbakonam dismissing the decree-holder's petition for execution on the ground that it was barred by the law of limitation.

(2.) It has been argued by the learned vakil for the petitioner that there had been an execution application before the present one, namely E. P. No. 4095 of 1924 and that thereon after service of notice on the judgment-debtors an order was made by the Court directing execution of the decree. No doubt, when an application is made for execution of a decree and notice of the application is served on the judgment-debtors, they are bound to appear if for any reason they should regard themselves as entitled to contend that the decree of which execution is sought is not there or then executable. The executability of the decree being one of the matters to be considered by the Court, the judgment-debtors were bound to appear and show cause why execution should not be ordered if they had any cause to show. If they fail to appear and show cause, and if on such failure an order ex parte should be made by the Court directing execution, then the question of the executability of the decree should according to the law of constructive res-judicata be regarded as having been decided by the Court in favour of the decree-holder on the general principle that an opportunity having been afforded to the judgment-debtors to show cause against it, they failed to show cause and that any ground that they might have and should have taken with regard to the executability of the decree having been failed to be taken by them should be deemed to have been decided against them. Mr. Jayarama Aiyar for the respondents has attempted to raise the question whether the rule of constructive res judicata in such a case could be resorted to when the parties are not personally served. To hold that in cases where parties are not personally served the rule would not be available would be to give premium to parties seeking to evade service of proper processes of the Court. All that is necessary under the law is that they should be properly served, served according to the rules relating to service. Under Rule 2, Order 48, Civil P. C., generally, all notices and processes under the Procedure Code are required to be served in the same manner in which summonses in suits have been directed to be served, that is by personal service if possible, and if that should be found not feasible, in any of the other ways indicated in the rules relating thereto. Then Order 5, Rule 19, provides as follows:Where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such a service as it thinks fit.

(3.) This order distinctly provides for the Court declaring such service as has been effected to be good, if it should be of the opinion that the service was sufficient and proper. No doubt the rule further proceeds and requires that in the event of the Court holding the service insufficient it should order such service as to it sees fit, It has been argued by the learned vakil for the petitioner that the fact in this case, that the Court proceeded after referring to the absence of the judgment-debtors to order execution must be regarded as impliedly including a declaration to the effect that the service was sufficient and proper. I am unable to accede to that contention. I am not sorry for my being unable to accede to the contention especially having regard to the unfortunate practice that has grown up at any rate in this presidency, of not paying sufficient attention to the service of processes. When the law requires that the Court should declare the proper service of a notice or process, the mere omission to make such a declaration is not in my opinion a mere irregularity. Whatever it may be in ordinary cases, I am satisfied that when the rule that is sought to be invoked is the rule of constructive res judicata, the rules relating to proper service of notices cannot be too strictly adhered to. In the present case on this execution application, namely E. P. No. 4095 of 1924 all that the learned Judge has said in this; "Absent ........Arrest, defendant 2, 25 November 1924," which means, I take it, that the person should be arrested and produced before the Court on or before that date. No doubt there is an office note before this order of the Judge as follows:- -"defendants affixed 7 November 1924 as defendant 1 gone out, driving out, his wife said". There is, therefore, in my view, no declaration by the Court of the sufficiency of service of notice within the meaning of Rule 19, Order 5, Civil P. C. Mr. Jayarama Aiyar in this connexion referred to the case of Vellayappa, Chetty V/s. Veerappa Chetty [1914] 1 L. W. 1 There the learned Judges, Sadasiva aier and Tyabji, JJ., held that in a case in which the Subordinate Judge noted as follows. "Defendants 1, 2, 5 and 6 absent. ex parte" the Subordinate Judge was legally justified in making such a declaration, taking the words written by the Subordinate Judge to amount to such a declaration.