P. Chandra Reddy, C.J.
1. This appeal is brought by the decree-holder in O.S. No. 103 of 1950 on the file of the Subordinate Judge's Court, Tenali, against the judgment of out learned brother Satyanarayana Raju, J.
2. The facts giving rise to the appeal may be briefly set out. The appellant instituted the aforesaid suit against the respondent for recovery of some amount due to him on certain dealings. There was attachment of a house belonging to the respondent before judgment. After obtaining the decree, the appellant proceeded to bring that property to sale. Presumably, a notice under Order 21, Rule 66 C.P.C. Was served on the respondent at the time of the drawing up of the proclamation of sale. But he does not seem to have appeared in answer to that notice, with the result that the terms of the proclamation of sale were settled in his absence.
After its publication, the property was brought to sale and it was purchased by a third party. As he failed to make the necessary deposit, the property was ordered to be resold, by reason of the provisions of Order 21, Rule 84, C.P.C.
3. At that juncture, the respondent appeared and raised an objection to the sale of the property, claiming exemption under Section 60(1) Clause (c) of the proviso. This objection was overruled by the Subordinate Judge in the view that as the judgment-debtor failed to appear in Court at the time of the drawing up of proclamation of sale and raise the objection at to the saleability of the property, he was barred from doing so at a later stage of the proceedings. He was also of the opinion that since the building was not appurtenant to agricultural lands the exemption could not be claimed. The aggrieved judgment-debtor carried the matter in appeal to this Court.
4. Our learned brother held that the bar of constructive res judicata would not apply to the present case and that all that Section 60(1) proviso (c) lays down is that houses and other buildings and the land immediately appurtenant thereto and necessary for their enjoyment are exempt from attachment and sale in execution of a decree and not that the agricultural land should be appurtenant to the house or other building. In this view, he allowed the appeal, but, as the Subordinate Judge had not gone into the question whether the judgment-debtor was an agriculturist or not, he remanded the matter to the Subordinate Judge's Court for an enquiry as to the status of the judgment-debtor. It is this order that is sought to be canvassed in this letters patent appeal.
5. In support of this appeal, it is contended by Sri Krishna Rao, learned counsel for the appellant, that the judgment-debtor not having claimed exemption at the time of the settlement of proclamation, he is debarred from agitating this at the time of the actual sale. The proposition pressed upon us by Sri Krishna Rao is that when once the judgment-debtor did not avail himself of the plea open to him under Section 60 C.P.C., at an early stage of the execution proceedings, he is precluded from putting it forward at a subsequent stage of the same proceedings. His contention is that such cases are governed by the doctrine of Res Judicata, under Section 11 C.P.C. which lays down :
'No Court shall try any suitor issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue teas been substantially raised and has been heard and finally decided by such Court.
Explanation IV. which embodies the principle of constructive Res Judicata says ;
'Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'
It is plain from these provisions that if any matter was in issue in prior proceedings between the same parties and was decided, that will not form the subject matter of enquiry in subsequent proceedings between the same parties. It is now well settled that the rule contained in this section is applicable to execution proceedings also. If after notice to the parties an order has been passed in execution it would not be open to either of the parties to object to that decision in subsequent applications for execution.
It is equally clear that a party that is sought to be affected by the doctrine of Res Judicata should have notice of the question that is sought to be raised in the proceedings and should have an opportunity to put forward his objections.
6. Admittedly, no notice was served on the respondent by reason of the operation of Order 21, Rule 22 C.P.C. Nor is there any material to show that notice was issued to him even subsequently. But, having regard to the provisions of Order 21, Rule 69 C.P.C. which require the proclamation to be drawn up after notice to the decree-holder and the judgment-debtor, all the Courts proceeded on the assumption that notice must have gone to the respondent. It is not in dispute that the judgment-debtor did not appear in Court at the time of the drawing up of the proclamation and claim the benefit of Section 60(1), Clause (c) of the proviso. In such a situation, is he precluded from raising an objection based on Section 60 C.P.C.
7. Section 60, in so far as it is material for the present enquiry, reads :
'The following property is liable to attachmentand sale in execution of a decree xx xx xProvided that the following particulars shall not beliable to such attachment or sale, namely:
x x x x x (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;' It is manifest that an agriculturist is entitled to certain benefits under this clause, viz., if the house and the adjoining sites are necessary for his enjoyment and house is also occupied by him, it is exempt from attachment. Is he to be deprived of the advantage which he derives from that section in a case like the present one ?
8. The learned counsel for the appellant contends that his non-attendance at the time of the settlement of sale proclamation and failure to urge the objection as to saleability have that effect. It is convenient here to look at the terms of Order 21, Rules 64 to 66.
Rule 64 is in these words :
'Any Court executing a decree may order thatany property attached by it and liable to sale, or suchportion thereof as may seem necessary to satisfy thedecree, shall be sold, and that the proceeds of suchsale, or a sufficient portion thereof, shall be paid tothe party entitled under the decree to receive thesame.'
Rule 65 reads :
'Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.' Rule 66 :
(1) Where any property is ordered to be soldby public auction in execution of a decree the Courtshall cause a proclamation of the intended sale to bedrawn up in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible,
(a) the property to be sold;
(b) the revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered;
(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment-debtor; and
(f) every other thing which the Court considers, material for a purchaser to know in order to judge of the nature and value of the properly.
It is plain that before the terms of proclamation of sale are settled, there should be an order for the sale of the property, The next step in the same proceedings is indicated in Rule 65. It is only thereafter that the terms of the proclamation are made.
9. Undeniably, the judgment-debtor had no notice before the Court made an order directing the sale of the property and notice is presumed to have gone to him only under Rule 66. The proclamation of sale is meant to furnish information to the intending purchasers in regard to matters specified in that rule. The object of issuing notice to the judgment debtor is to give him an opportunity to furnish accurate particulars in regard to matters contemplated by that rule. It is seen from Rule 66 that it does not bear on the rights and liabilities of either the decree-holder or the judgment-debtor and as such no decision will be taken under that rule affecting the lights and liabilities of the parties. The judgment-debtor is not expected to raise the question of the liability of the property to be attached under that rule.
The settlement of the terms of proclamation does not involve even an implied adjudication as to the saleability of the property in question. A notice under this rule does not amount to an intimation that a point relating to the character of the property and its saleability could be raised at that stage. Therefore, that question is not determined at the time of the settlement of proclamation. The question whether the property is liable to be sold or not precedes the drawing up of the proclamation. The notice under Order 21, Rule 66 C.P.C. is in form No. 28 informing the judgment-debtor of the date fixed for settling the terms of the proclamation of sale. By that notice, he is not called upon to show cause why the property should not be brought to sale. As we have already remarked, it is only after passing an order to sell the property prescribing the mode of sale that the Court proceeds to settle the terms of the proclamation. That being the situation, we do not think that the judgment-debtor could be precluded from raising the plea founded on Section 60 C.P.C.
10. We now consider the cases cited on either side in support of their respective contentions. To substantiate the proposition that on service of notice on the judgment-debtor under Order 21, Rule 66 C.P.C. he is required to put forward all available objections on pain of being debarred from claiming the exemption under Section 60 C.P. C. Sri Krishna Rao, learned counsel for the appellant, calls in aid the decision in Shanmugavelu v. Karupannaswami, : AIR1954Mad1070 .
It was there ruled that the principle of Res Judicata is extended to execution proceedings also and that an order passed after notice to the parties in an execution petition would be final and it is not competent for them to raise the same question in subsequent execution petitions. The proposition contained in that ruling is not open to exception and it is not disputed, as we have already stated, that the principle of Res Judicata is applicable to execution proceedings also. Therefore, that decision does not carry the appellant any further.
11. Reliance is next placed on Shankar Ramakrishna v. Daga Tanaji, ILR (1948) Bom 517: (AIR 1949 Bom 79) wherein it was decided by Chagla (Offg. Chief Justice) that if a judgment-debtor failed to appear in Court on notice issued to him under Order 21, Rule 66 C.P.C., he could not be permitted to make an application for satisfying the decree by paying the money in instalments on the ground that the decree was passed ex pane and that he was an agriculturist on the date of the decree, and as such the application was barred on the principle of Res Judicata. The learned Judge observed that the judgment-debtor had an opportunity to put forward his status as an agriculturist when the proclamation of sale was issued and not having done that, it was not open to him at a later stage to raise that contention in the same execution proceedings.
For one thing, that case did not deal with the saleability of property. Secondly, it is opposed to the ruling of a Bench of that Court in Narayan v. Dhondo 28 Bom LR 305: (AIR 1926 Bom 246). In the latter case, in the earlier execution proceedings, the judgment-debtor did not raise the plea that he was an agriculturist, yet it was ruled by Norman Macleod C.J. and Coyajee J. that it was competent for the judgment-debtor to urge that contention in subsequent execution proceedings. There is also another pronouncement of the same Court in Narayana v. Dhondo, 28 Bom LR 305 : (AIR 1926 Bom 246) (Sic) (Shidraj Bhojraj Desai v. Renaki Konda Mahar, 27 Bom LR 1490 : (AIR 1926 Bom 140) (?) which had adopted the same view as Rudrappa v. Chanbasappa, 26 Bom LR 153 : (AIR 1924 Bom 305). Be that as it may, we do not think that the instant case is governed by the doctrine of ILR (1948) Rom 517 : (AIR 1949 Bom 79) or of Sakarlal v. Jerbai, AIR 1934 Rom 348.
The latter was a case where the judgment-debtor was aware of the defects in the sale proclamation before the date of sale and yet he failed to take action to get it corrected. In that position Wadia J. ruled that he could not be allowed to raise any question relating to the irregularities in the proclamation of sale after the sale took place.
12. Basayya v. Hanumantha Reddi, ILR (1945) Mad 211 : (AIR 1944 Mad 548) relied upon by the learned counsel for the appellant is not a case where the benefit of Section 60 C.P.C. was claimed before the sale actually took place and where only notice under Order 21, Rule 66 was served on the judgment-debtor. There, the judgment-debtor failed to claim his rights under Section 60 C.P.C. on two prior occasions. Evidently, notice had been served on the judgment-debtor under Order 21, R. 54 also. Further, the relief asked for in that case was to set aside the sale under Order 21, Rule 80 C.P.C. on the ground that the property was not liable to be sold by reason of S. 60 C.P.C. unlike the instant case. Gauri v. Ude, ILR (1942) Lab 559: (AIR 1942 Lab 153) (FB) belongs to the same category.
It appears from that report that before the auction sale, the judgment-debtor had notice at first about the attachment of the property under Order 21, Rule 54 C.P.C. and then in connection with proclamation of sale under Order 21, R. 66 C. P.C. and the judgment-debtor sought to get the sale set aside under Order 21, Rule 90 C.P.C. In such a situation, the Full Bench held that the judgment-debtor was precluded from questioning the order for sale and impugning the sale on any ground which he might and ought to have taken before the sale.
13. On the other hand, there is a decision of a Full Bench of the Madras High Court which furnishes an effective answer to the point presented on behalf of the decree-holder -- Chidambaram Chetti v. Theivanai Ammal, ILR 46 Mad 768 : (AIR 1924 Mad 1) (FB). It was laid down by the Full Bench that the failure of the judgment debtor to appear at the hearing of an application to settle the terms of sale proclamation would not prevent his legal representative from disputing the liability of the property to be attached on the principle of Res Judicata. Ramesam J. who was one of the members of the Full Bench, remarked :
'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.'
In our opinion, the judgment-debtor cannot be required to raise an objection as to the saleability of the property in answer to a notice under Order 21, Rule 66 C.P.C. and the principle of constructive Res Judicata can have no application to a case where he had no notice of the point to be decided against him, namely, as to the liability of the property to be sold. Further, the drawing up of proclamation of sale is purely a ministerial or administrative matter and no judicial determination is involved in such a procedure. That being the position, there is no scope for invoking the doctrine of Res Judicata : (see Shyamakant v. Rambhajan, MR 1939 F.C. 74).
14. There is also another obstacle in the way of sustaining the contention of the learned counsel for the decree-holder. It is plain from Section 60 C.P.C. that the occasion to claim the benefit of the section arises only at the time of attachment and sale of the property. The appropriate stage at which the exemption could be claimed in cases of this description is at the time when the actual sale is to take place.
15. As appears from the narration of facts, although there was originally a sale, that could not stand for the reason that the auction purchaser committed default in making the necessary deposit and consequently resale was directed to be held. That being so in effect, there was no sale at all. Indisputably, a re-sale under Order 21, Rule 87 is a continuation of the sale proceedings. So, the sale proceeding had not concluded before the judgment-debtor could urge the objection founded on Section 60 C.P.C. In our opinion, it is within the rights of the judgment-debtor to put forward the plea that the house of an agriculturist falling under Clause (c) of the proviso to Section 60(1) C.P.C. could not be sold before the sale had actually taken place,
16. Another ground urged by the learned counsel for the respondent for the dismissal of the appeal is that Section 60 enacts an absolute prohibition against the sale of the property and that the decree-holder is precluded from either attaching or selling any property that falls within the scope of that section. In the view we have taken of the matter, it is unnecessary for us to pronounce an opinion on this contention.
17. In the result, the appeal is dismissed with costs.