SUNDARARAIULU 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 groan d that it was barred by the law of limitation.

(2.) It has bean 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 the 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 or 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 Iyer 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 eases where parties are not personally served, the rule would not be available would be to give a 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 1 of Order XLVIII, Civil Procedure Code, generally all notices and processes under the 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 V, Rule 19 provides as fallows. Where a summons is returned under Rule 17, that 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 service as it thinks fit." 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 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 implied by 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 of processes,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 is this "Absent. Arrest defendant No. 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 No. 1 gone out, driving out, his wife said":--Thereia, therefore, in my view no declaration by the Court of the sufficiency of service of notice within the meaning of Rule 19 of Order V Civil Procedure Code. Mr. Jayarama Iyer in this connection referred to the case of Vellayappa Chetty V/s. Veerappa Chetty 22 Ind. Cas. 498 : 1 L.W. 1 : (1914) M.W.N. 79. There the learned Judges Sadasiva Iyer and Tyabji, JJ. held that in a case in which the Subordinate Judge noted as follows:--"Defendant Nos. 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. For my part it seems to me that when the law requires the Court to make a formal declaration about the propriety of the service it requires the Court pronounce upon such propriety in a judicial manner and it is obvious that the sufficiency or otherwise of the service required to be decided on by the Court should not be left merely to the office. I hold, therefore, that such a formal declaration of the propriety of service is really necessary at any rate in all cases in which on the basis of such proper service the rule of constructive res judicata is sought to be availed of There is no such declaration in this case by the learned Judge. It follows from this that the order that was made directing examination on the execution petition of the 8 October, namely, E.P. No. 4095 of 1921 was not an order with regard to which the respondents judgment-debtors had really an opportunity to show cause against the executability of the decree.

(3.) The decision on this point is sufficient to dispose of the petition. In that view it is not necessary to decide the further question that has been raised and argued on behalf of the petitioner that with respect to applications for execution the provisions of IX do not apply. The decisions with regard to that matter are conflicting both in this Court and elsewhere, and as a determination of that question is not necessary for the purpose of this case I do not propose to say anything about it.