ADISESHA AIYAR Vs. PAPAMMAL

JUDGEMENT

(1.) The question for decision in this second appeal is whether the second defendant (judgment-debtor) was precluded from raising her objection, to the attachment of the properties by reason of the orders made in previous execution petitions, i.e., E.P. No. 1661 of 1936 and E.P. No. 1165 of 1940 on the file of the same Court. The appellant (decree-holder) obtained a decree in O.S. No, 621 of 1930 against the first defendant the mother of the 2nd defendant for Rs. 480 and for costs and in E.P. No. 687 of 1933 applied for attachment and sale of certain properties. Some properties were sold in execution of the decree and the decree-holder purchased the same. The first defendant, who is the mother, died some time in September 1936. E.P. No. 1661 of 1936 was filed on 3 November, 1936, for the balance of the decree amount and the mode in which the assistance was sought in the execution petition was to implead the second defendant who was her only daughter as her legal representative and for attachment and sale of the immoveable properties belonging to the first defendant and described in the schedule to the said petition. On this execution petition notice was ordered to the second defendant for 5 December, 1936. The following endorsement appears on the petition: Defendant 2 affixed. V.M. attests. L.R. of defendant i to be added as defendant 2. Attack, item i. D. 2 absent. L.R. of D-1 added as D-2. Attach item 1. 7 January, 1937. Initialled. D.M., 5 December, 1936. I perused the endorsement in the original execution petition and I find that the order made by the learned District Munsiff was only " D. 2 absent. L.R. of D. 1 added as D. 2. Attach item 1. " The other endorsements are apparently made by the office. Then in pursuance of that attachment sale papers were filed and sale notices were issued by the order of the learned District Munsiff dated 18 March, 1937, returnable on 9 April, 1937. On 9 April, 1937, the order of the learned District Munsiff was that " defendant absent, proclamation of sale on 6-7, and batta in three days ". There too an endorsement of the office appears as " D. 2 respondent affixed. V. M. attests." There was also an application taken by the decree-holder, E.A. No. 1080 of 1937 for permission to bid and set-off, and this application is said to have been personally served on 10 August, 1937 and the thumb impression of the second defendant is stated to have been taken. On 28th September, 1937,"lot No. 1 was sold, the decree-holder himself purchasing it and the sale was confirmed on 1 November, 1937.

(2.) Subsequently the decree-holder in order to realise the balance still due under the decree, filed E.P. No. 1165 of 1940 for attachment and sale of the rights of the first defendant's husband in a usufructuary mortgage executed in his favour dated 28 October, 1911. In that execution petition as well notice was taken out to the second defendant and her thumb impression appears to have been affixed and the learned District Munsiff held that the service was sufficient. That execution petition was not however pressed and it was dismissed.

(3.) The present execution petition No. 160 of 1943 was filed on 4 March, 1943, for recovery of the balance still due and for attachment and sale of the immoveable properties mentioned in the schedule. The objection to this execution petition was, ahiong others, that the properties were not liable to be attached as they were not the properties of the first defendant. A plea of res judicata was raised by the decree-holder appellant that by reason of the earlier execution petition it was not competent for the second defendant to raise the question as the properties that were sought to be attached in the present execution petition were attached in E.P. No. 1661 of 1936 to which the second defendant was a party. It may be stated that there is no dispute that the properties that were sought to be attached in the present execution petition were attached in E.P. No. 1661 of 1936 to which the second defendant was added as a party, but, the contention of the second defendant is that she had no notice of the execution petition No. 1661 of 1936, that she was not properly served, and that therefore she was not bound by the decision in that execution petition. Both the Courts found in her favour and the appeal is by the decree-holder.