Krishnaswami Nayudu, J.
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 3rd 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 5th 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. 7th January, 1937.
5th 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 18th March, 1937, returnable on 9th April, 1937. On 9th 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 10th 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 1st 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 28th 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 4th 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.
4. The learned Counsel for the appellant argues that in so far as the order in E.P. No. 1661 of 1936 was concerned, since it was made after notice was ordered to the second defendant even though there was no declaration, it must be held to be sufficient notice in law, the notice having been affixed and the Court having declared her ex parte, brought her on record and directed the attachment. The second contention is that in any event the order in E.P. No. 1165 of 1940, though the petition was dismissed, was made after notice to the second defendant was held to be sufficient and a declaration was made to that effect and as such by reason of E.P. No. 1165 of 1940 it was not competent for the second defendant to raise an objection to the attachment in the present execution petition.
5. As regards the first contention, Order 5, Rule 19, Civil Procedure Code, lays down the procedure to be followed in considering and deciding as to what is the proper service in regard to summons which is also applicable to notices. Order 5, Rule 19 reads as follows:
Where a summons is returned under Rule 17, the 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 inquiry 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.
In this case, from the endorsement I am unable to say that the learned District Munsiffhas proceeded under Rule 19. He appears to have accepted the endorsement of the office, ' D. 2 affixed. V.M. attests' as sufficient compliance of what is required under Rule 19. The learned Counsel, however, relies on a decision In Adhilakshmi Ammal v. Srinivasa Goundan (1944) 1 M.L.J. 36, where it was held that in regard to service one has to consider the facts of each case and decide on those facts whether the failure to declare a judgment-debtor ex parte was a mere omission, and, the subsequent procedure made it clear that the judge did consider the service of notice sufficient, or whether the facts of the case left in some doubt the question whether there was a proper service or not. In that case it was held that the defendant refused service on the frivolous ground that his father's name was not correct, despite the fact that his father was served at the same time and was a party to the same proceedings and that the executing Court should have considered the service sufficient. The learned Judge held that the failure in that case to declare the judgment-debtor as ex parte was a mere omission and the subsequent procedure made it clear that the judge did consider the service sufficient. Reliance on the circumstances and the nature of the excuse for not receiving the summons was also taken into account and I do not think that the facts of the present case would warrant the application of the principle laid down in Adhilakshmi Ammal v. Srinivasa Goundan (1944) 1 M.L.J. 36.
6. The learned Counsel has also relied on the decision in Venkata Rayanim Vane v. China Bapanna : AIR1940Mad213 . There the question of service was considered in an application for setting aside an ex parte decree. The learned Judges observe that
Even though it is desirable that all Courts should observe the mandatory provision of Order 5, Rule 19 and ' either declare that the summons has been duly served or order such further service as st thinks fit', the absence of such an express declaration will not involve as a necessary consequence a finding that a summons has not been duly served.
There is this circumstance in that case that the learned Subordinate Judge held that the appellant really knew all about the suit as it was going on. The other case is Govindakrishna Aiyar v. Sankaralinga Naicker : AIR1943Mad55 which refers to the decision in Venkata Rayanim Varu v. China Bapanna : AIR1940Mad213 . That is a case of declaring a guardian of defendants ex parte. There what happened was that notice was taken out and the return of notice was that the guardian was evading service. On this return being brought to the notice of the Court, the Court declared the defendants ex parte.
7. I do not think that the failure to comply strictly with what is laid down in Order 5, Rule 19 could be applied to a case of this kind where the 2nd defendant is to be precluded rom raising the plea which is open to her by application of the constructive principle of res judicata. It is essential that in such cases it should be satisfactorily proved that she was a party, to the earlier proceedings and was properly served. Admittedly there was no personal service of the execution petition and the service, which is sought to be relied upon, is the endorsement of the office that notice has been affixed and the V. M. has attested it. The V. M. was not examined, nor was the process server, and the Court has not applied its mind and held that it was sufficient. The principle of res judicata should be applied ' very cautiously to execution petitions. The learned Counsel for the respondent Mr. Srinivasan, has cited Azhagappa Chetti v. Ramanathan Chettiar : (1933)64MLJ629 which correctly appreciates the position regarding the application of the principle of constructive res judicata in execution petitions and with reference to the service of notice, it was held that:
When a notice of an execution application is ordered by Court to be served on the defendant and the notice has to be affixed to the door of the dwelling house owing to the reported absence of the defendant, the Court must either declare it sufficient or order such service as it thinks fit, as it is imperatively required to do so under Order 5, Rule 19 of the Civil Procedure Code and in a case where it is sought to apply the constructive principle of res judicata against the defendant, the omission of the Court to make such a declaration as enjoined by the Code is fatal.
That judgmsnt was again reiterated by Pakenham Walsh, J., in Ramaswami Chettiar v. Chinnappa Cketti : AIR1933Mad406 . It was also argued that in any event the second defendant . respondent had notice of the subsequent proceedings relating to sale where there was a personal service by reason of the affixture of the thumb impression in the notice issued on the application for leave to bid (E. A. No. 1080 of 1937) and as regards the notice 'of the settlement of the sale proclamation, but I do not think that notice was sufficient as it was not open to her at this stage to raise an objection that the properties that are sought to be sold are not liable to be proceeded against. (Vide Chidambaram Chetli v. Theivanai Ammal : (1923)45MLJ346 .
8. The other contention of the appellant that in any event E. B. No. 1165 of 1940 filed by the appellant for attachment of the usufructuary mortgage debt in which notice was affixed and where there was a declaration that the service was sufficient, would be a bar to the raising of the plea that the properties which are the subject-matter of the present execution petition are not liable to be attached. The simple answer to that objection is that the properties that were sought to be attached and sold in E.P. No. 1165 of 1940 are different from the one in the present execution petition. The issue that could be said to be res judicata is whether the property belonged to the first defendant or not and the property being different it cannot be said that the decision in respect of ownership of one property could be a decision with regard to the ownership of a different property.
9. In the result, the appeal is dismissed with costs.