Walter Salis Schwabe, Kt., K.C., C.J.
1. The present appellant is the decree-holder. The respondent is the legal personal representative of a brother of the judgment-debtor who had been brought upon the record for the purpose of execution. An application had been made for attachment of the moveable property of the original defendant, the judgment- debtor. Those proceedings had come to nothing by reason of the fact that the present appellant failed to find the necessary expenses. Within a year of those proceedings, application was made for attachment of the immoveable property. By reason of the operation of Order XXI, Rule 22, no notice of those proceedings was required to be given to the representative of the judgment-debtor and no notice was given. An application was then made for the sale of the property and in due course a notice for settling the sale proclamation, in form No, 21 of appendix E of the Code of Civil Procedure, was issued. That notice stated that the decree-holder had applied for a sale of the property and continued, 'You are hereby informed that the 14th day of August 1920 has been fixed for the purpose of settling the terms of the proclamation of sale.' That notice was served by affixing in to some place alleged to be the residence of the respondent. The respondent, who alleges that he never received the notice, did not attend on the date fixed for settling the terms of the proclamation. He was declared ex parte and the terms of the proclamation were settled in his absence. He then applied to the District Munsif for the release of the property on the ground that it was not liable to be attached. The District Munsif dismissed that application, and on appeal to the Subordinate Judge, the Subordinate Judge remanded it to the District Munsif to enquire into the facts as to whether or not the property was the property of the judgment-debtor, holding that the notice of the proceedings in which he had been declared ex parte was not properly served upon him. That raises an interesting point as to whether or not it was open on these proceedings to the District Munsif or the Subordinate Judge to discuss the question whether or not notice had been properly served or whether it was necessary for the respondent to take some different form of proceedings to challenge that notice, but, in the view we take of another point in this case, it is unnecessary for us to express any opinion on that point.
2. The appellant contended that the question of the ownership of this property was res judicata and that it had been decided, or must be taken to have been decided, on the hearing of the application for settling the terms of the proclamation of sale. Under Section 11 of the Civil Procedure Code 'no Court is to try any issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit.' Several cases have decided that a matter must be taken to have been substantially in issue in a former suit or proceeding if the point was open and could have been raised in. the former proceedings. In this case the Respondent had no notice at all that the matter of the ownership of the property would or could come up for decision on the hearing of the application for settlement of the terms of the proclamation of sale. He did not even get a draft, of the proposed terms. All that he was told was that a certain date had been fixed for settling those terms, and it would be a very remarkable thing if, on receipt of such notice, it were to follow that, if he did not attend on that occasion, he must be taken to have attended and raised the question whether or not the property was the property of the judgment-debtor. Our attention has been called to no authority in support of that contention and it seems to me to be quite wrong, because that was not the time for discussing the question of the ownership of that property, although it is possible that the Court would on an application then made have listened to some argument on the point; nor did the terms of the notice that he got suggest that it was. Our attention has been called to the case of Subbiah Naicher v, Ramanathan Chettiar I.L.R. (1914) Mad. 462. But I think, on this point, the whole of that decision turns on these words; 'Now the order of August 1909 was no doubt an ex parte order but it was passed after notice was issued to the 2nd defendant to show cause why such an order should not be passed and after the Court had satisfied itself on the affidavit and the return of the process-server that the notice had been duly served.' If in this case the respondent had been asked to show cause why the property should not be sold the reasoning of that decision would apply, but in this case by the formal notice that he got he was not asked to show cause as to anything and he had no intimation at all that the matter would be open to him to raise or that it would be discussed. Under those circumstances I cannot see that it is possible to hold that his nonappearance on that occasion amounts to a decision against him that the property was the property of the judgment-debtor.
3. Our attention has also been called to the decision of the Full Bench of this Court in Sivagami Achi v. Subrahmania Ayyar I.L.R. (1904) Mad. 259 that what takes place on the hearing of the application to settle the terms of the proclamation of sale is more of an administrative character than judicial and that therefore no appeal lies against the decision of a Court on that occasion as to what that proclamation is to contain. That being the decision of the Full Bench, unless it is possible to say that part of what takes place on that occasion is judicial and part administrative, it would be a strong ground for contending that the matter cannot be res judicata by reason of the non-attendance at a sitting of the Court, such sitting being held for administrative and not judicial purposes.
4. I desire to say that our decision in this case must be taken to be confined to the particular facts of this case, that is to say, that where you have nothing more than the non-attendance at the hearing of an application to settle the terms of a sale proclamation, the respondent cannot be taken to be estopped by reason of that non-attendance on the principle of res judicata from thereafter denying the liability of the property to execution.
5. On these grounds I think the Subordinate Judge was right in remanding this case to the District Munsif. The result will be that this case must go back to the Referring Bench with that direction.
6. I agree. As one of the Referring Judges, I add that, speaking for myself, I am now clear that in stating the effect of the obligation imposed by the notice to Kandasami, we had not sufficient regard to the fact that it was given in proceedings which originated without notice to him of the attachment.
7. I agree: but I wish to add a few words. The loading decision on the application of the principle of res judicata to execution proceedings is the decision of the Privy Council in Mungul Pershad Dighit v. Grija Khant LahiriI.L.R. (1882) 8 Calc. 51. It was, held in that case that, if after notice, a decision was passed on an execution petition, it would not be open to parties to object to that decision when a subsequent application is presented. In applying that case a, Bench of this Court in Subramania Ayyar v. Raja Rajeswara Dorai I.L.R. (1917) Mad. 1016 say, 'One principle seems to be clear, and that is, that the party who is sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision. In the present case no notice went to the respondents to show cause why they should not be brought on the record as the legal representatives of the deceased judgment-debtor for the purpose of execution. They had no notice that any particular property was going to be attached. We must therefore overrule this plea.' I entirely agree with the principle underlying these remarks. Another example of the application of this principle is the decision in Sheik Budan v. Ramachandra Bujangaya (1). Notice to the judgment-debtor to be present at the settlement of the terms of the proclamation cannot be regarded as raising the question of the liability of the property to be attached, and therefore it cannot be said that the judgment-debtor was invited to object to that attachment. That being so, the order that followed cannot be regarded as an implied adjudication that the property was correctly attached. I agree with the order proposed.