Pandrang Row, J.
1. These appeals are from certain orders passed in proceedings in execution of the decree in O.S. No. 102 of 1920 on the file of the sub-Court, Sivaganga. The earlier appeal is from the order dated 29th February, 1932 passed in an appeal by the District Judge of Ramnad, from the order of the subordinate Judge of Sivaganga dated 12th March, 1930. The later appeal is from the order of the District Judge dated 10th February, 1933 in an appeal from the order of the subordinate Judge of Devakottah dated 17th August, 1932. The later appeal is the more important of the two for the reason that if that appeal fails the other appeal is not going to be pressed.
2. The later appeal No. 50 of 1933 is by the legal representatives of the decree-holder in the suit. The other appeal is by the judgment-debtor. There was an application made by the legal representatives to be brought on record in 1929 including a prayer for transmission of the decree for purposes of execution to the sub-Court of Devakottah. Notice of this petition was taken out and the order thereon was an order for transmission. The judgment-debtor's case was that he was never served with notice of this petition whereas the case of the appellants--that is, the appellants in C.M.S.A. No. 50 of 1933 - was that notice was refused by the judgment-debtor and was therefore affixed, and that therefore notice must be deemed to have been duly served on him. An application was made by the judgment-debtor to set aside the order of transmission but that application was dismissed by the subordinate Judge of Sivaganga on the ground that he should apply to the sub-Court Devakottah to which Court the decree had been transmitted and where execution was pending. The judgment-debtor appealed from this order to the District Judge and the learned District Judge dismissed the appeal on the preliminary-ground that the appeal was not maintainable. It is from this order dismissing the appeal as incompetent that C.M.S.A. No. 126 of 1932 is filed.
3. Subsequently the judgment-debtor applied to the sub-Court, Devakottah to raise the attachment of the properties of the judgment-debtor made in execution of the decree. That petition was dismissed by the Subordinate Judge on the ground that it was not open to the judgment-debtor to raise the plea of limitation or the plea of discharge at that stage in view of the order for transmission passed by the sub-Court of Sivaganga. On appeal from this order by the judgment-debtor, the learned District Judge disagreed with the subordinate Judge and held that the subordinate Judge should and could have gone into the objections raised by the judgment-debtor to the execution, or in other words that the pleas of limitation, discharge etc., should have been decided on the merits and he allowed the appeal and remanded the petition to the sub-Court for disposal and C.M.S.A. No. 50 of 1933 is from this order.
4. The substantial question raised in this appeal No. 50 of 1933 is whether the pleas of limitation, discharge etc., are open to the judgment-debtor at this stage, or in other words, whether these questions must be deemed to have been decided against the judgment-debtor when the order transmitting the decree for execution to the sub-Court of Devakottah was passed. The order of transmission would no doubt operate as res judicata if really it was passed after due service of notice of the petition on the judgment-debtor. There was no personal service; the service was by affixture, the reason for affixture being refusal by the judgment-debtor to acknowledge receipt of the notice. In such a case, as required by Order 5, Rule 19 Civil Procedure Code, the Court shall either declare that the summons has been duly served or order such service as it thinks fit. In this particular case there was no such declaration. It was held in Azhagappa Chetti v. Ramanathan Chettiar (1932) 64 M.L.J. 629 by a Bench of this Court that the omission of the Court to make a declaration of the kind mentioned in Order 5. Rule 19, Civil Procedure Code, is fatal when it is sought to apply the constructive principle of res judicata against the judgment-debtor. This is the view taken by the learned District Judge and in my opinion that view is correct; and it must therefore be held that the order directing transmission of the decree in the absence of any declaration of due service does not operate as res judicata in this case. The pleas of limitation and discharge have never been actually decided and the judgment debtor is entitled to have a decision upon them. Express decision there has been none, and no decision can be implied in the absence of a proper declaration as required by law of the service of notice.
5. A further point was urged during the hearing of the appeal to the effect that the appeal to the District Judge itself was incompetent, because the order appealed from was passed not on the execution petition itself but on an execution application for raising the attachment; in other words, it is argued that the order actually appealed from is an interlocutory order from which no appeal lies. I am unable to accept this contention. The question that was decided by the learned subordinate Judge was a question relating to the execution and discharge of the decree. The question of limitation related to the execution of the decree and the question of discharge related to the discharge of the decree and there was a determination of these questions adverse to the judgment debtor. It was none the less a determination because the ground on which the decision went against the judgment-debtor was that it was not open to him to raise these questions. It cannot be seriously argued that if the decision had been in favour of the judgment-debtor it would not have been open to appeal by the decree holder as a determination of the question relating to execution and discharge of a decree, and I do not see any reason why it should not be regarded as open to appeal merely because the decision went against the judgment debtor.
6. It is sufficient to refer in this connection to the decision in Raja of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 : L.R. 48 IndAp 45 . Moreover it would appear that this objection as to the competency of the appeal was not taken in the lower appellate Court. The objection taken even in the grounds of appeal to this Court is worded differently, the ground urged being that the appeal was incompetent because the order in the execution petition itself had become final, and not because the order appealed from did not amount to a decree as is now urged.
7. I am however of opinion that the order appealed from, that is to say, the order of the Subordinate Judge of Devakottah dated 17th August, 1932 is a 'decree' as defined in the Code of Civil Procedure being the determination of questions under Section 47 of the Code of Civil Procedure.
8. It follows from what I have said that C.M.S.A. No. 50 of 1933 must fail and it is accordingly dismissed with costs.
9. The other appeal C.M.S.A. No. 126 of 1932 is not pressed and it is dismissed with costs.
(Leave to appeal refused).