Pakenham Walsh, J.
1. This appeal arises out of a certain execution proceeding in which the plaintiff in O.S. No. 31 of 1919 seeks to execute a part of a compromise decree passed in that case. There are two related families which for the purpose of this case we may call the S. A. and the S. N. families. These families had endowed certain charities. The plaintiff in O.S. No. 31 of 1919 belongs to the S. A. family and he brought a suit against the S. N. family for reliefs which will be detailed later. The parties compromised the suit by an agreement, reduced to writing on the 20th April, 1921. A decree in terms of the compromise was granted on the 7th September, 1921. The plaintiff put in an execution petition, Ex. A, on the 2nd March, 1925, in which he asked for the arrest of the 1st defendant and for delivery of documents as per terms of the decree. It is stated in the remarks at the end of the petition that the petition is not barred by limitation as the suit was one in respect of a scheme. The application being more than a year after the date of the decree, notice was ordered under Order 21, Rule 22, Civil Procedure Code, for 27th April, 1925. This notice was ordered on the 31st March, 1925. Another E. P., M. P. R. No. 131 of 1925, was put in on 1st April, 1925, for transmission of the decree to the Court of the Subordinate Judge of Sivaganga for execution. The subsequent proceedings are not very clearly to be made out from endorsements, nor can it be made out from the two returns, Exs. B and B-l, which return related to which notice. We may gather from the order that the return, Ex. B-1, relates to the application for transmission and the return, Ex. B, relates to the application for arrest. Even in the order there is a mistake on this point because the learned Subordinate Judge says that the endorsement that the judgment-debtor left two days previously is on Ex. B and he says that Ex. B is the return on the notice for transmission. But this is the entry on Ex. B-l and the return on Ex. B is that the 1st defendant had gone a week ago , to Madras. On Ex. A, the endorsement by the Court on the 27th April, 1925, is 'Notice not returned from Ramnad. Adjourned to 8th July.' The next entry is 'Not yet returned. Arrest by 3rd August,' and it is dated 8th July, 1925. If that entry is correct it would automatically establish the defendant-appellant's case that he was not served with that notice before the arrest order was passed. But it seems clear there is an error here because both the notices had been returned as served by that date. Ex. B is marked 'District Court, South Arcot, 10th May, 1925 'and Ex. B-1 is marked 'District and Sessions Court, South Arcot, Cuddalore, 11--5--1925'. As it has not been contended before us that the notices were not returned to Court as served before the date of the orders, this matter need not be further mentioned, except to say that in Ex. A not only is thereto order that the service is sufficient but there is not even a note that it has been served in any way and that without any such record being made, arrest by 3rd August was ordered on the 8th July, 1925. As the batta was not paid, the petition was dismissed on the 3rd August, 1925. As regards the transmission petition Ex. A-l the orders are 'Notice for 8--7--1925' dated 6--4--1925 and 'Defendants 1 and 3 to 7 absent affixed. Defendants absent. Granted' on 8--7--1925. The decree was transmitted for execution but as no execution was applied for within six months it was re-transmitted. More than two years afterwards the plaintiff presented another execution petition, M. P. R. No. 272 of 1927, dated the 3rd November, 1927. The defendants pleaded that the decree was not executable. The plaintiff had also applied to add the legal representatives of the deceased 4th defendant and to transmit the decree to the Court of the Subordinate Judge of Devakotta for execution. The defendants had no objection to the adding of the legal representative' or to the transmission of the decree, provided it was executable but they contended that it was not executable. The learned Subordinate Judge held that the question regarding the executability of the decree was a matter to be decided by the Court to which it was to be transmitted. Of this matter an appeal was taken to the High Court and in their order, dated the 4th April, 1928, Madhavan Nair and Jackson, JJ., held that this was a matter to be decided by the Sub-Court which transfers the decree. The Subordinate Judge then decided that per se the decree was not executable, but that the defendants were barred on the principle of res judicata from raising this contention on account of the execution proceedings taken out in 1925. Against this order the present appeal is preferred.
2. [Their Lordships first dealt with the question of the executability of the decree on the facts before them, apart from the question of res judicata.]
3. We will now turn to the question of res judicata. Admittedly Section 11, Civil Procedure Code, is not applicable as it relates to matters decided in suits. It is only on principles analogous to that section that res judicata can be applied to execution proceedings. Now the basis of any such application, where the party has not appeared and had not been heard, must be that he had had notice. Order 5, Rule 17 lays down the manner in which. processes are to be served, and Order 5, Rule 19 says:
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.
4. It is argued before us, and we think perfectly correctly, that as there has been no declaration by the Court in this case that the summons was duly served, the principle of res judicata cannot be invoked against the defendants. In this connection it is to be noticed that there has been an important change in the view of law taken owing to the recent decision of the Full Bench in Arunachalam v. Veerappa Chettiar I.L.R. (1931) 55 Mad. 17 : 61 M.L.J. 348 where it was held that Order 9, Rule 13 does not apply to execution proceedings. (We understand that this defect will be shortly remedied.) The view that a party could apply to have an ex parte order set aside under Order 9, Rule 13, which was taken in Subbiah Naicker v. Ramanathan Chettiar I.L.R. (1914) 37 M. 462 : 26 M.L.J. 189 and which the learned Subordinate Judge has taken in this case, is therefore incorrect; and in view of the fact that this relief is not now open to him, the remark in Subraniania Aiyar v. Raja Rajeswara Dorai I.L.R. (1916) 40 Mad. 1016, which was made even before this decision, that the principle of constructive res judicata should be very cautiously applied to execution proceedings, becomes of still greater weight. Even before this Full Bench decision in Sundararajulu v. Narayanaswami A.I.R. 1927 Mad. 813 it was held that the Court must make an order as to the sufficiency of service if the doctrine of constructive res judicata is to be availed of. See also Prithi Mahton v. Jamshed Khan I.L.R. (1922) 1 Pat. 593. In the light of these decisions let us consider the reasons given by the learned Subordinate Judge for enforcing the doctrine as against the defendants in this case. He says., that the 1st defendant came to know as early as February, 1927, of the previous applications and the orders passed thereon and that he admittedly made no attempt to set aside the orders on the previous applications either by an application under Order 9, Rule 13, Civil Procedure Code, or by an appeal. He proceeds:
Assuming for the sake of argument, and only for the sake of argument, that the returns on the previous notices were either falsely or fraudulently made by the process-server at the instance of the decree-holder, the 1st defendant should have sought to set aside the orders on the previous execution application either by an application under Order 9, Rule 13, Civil Procedure Code, or by an appeal. Having failed to do so, it is not open to him in the present proceedings to challenge the validity of the orders passed on the previous execution applications and the orders thereon operate as res judicata as against him.
5. Now, according to the Full Bench ruling, the remedy under Order 9, Rule 13 is not open to him. There remains only therefore the remedy by way of appeal against the order itself. If he had gone up on appeal against either of these orders when he came to know of them, he would have been at once informed by the Appellate Court that both the petitions had either been dismissed or become inoperative, the petition for arrest owing to non-payment of batta, and the petition for transmission by the fact that the records had been returned to the transmitting Court since execution had not been applied for within six months. His appeal would, therefore, not have been entertained at all and he would have been left without any remedy. As against the view that since the imperative requirements of Order 5, Rule 19 have not been carried out the summons cannot be held to have been served, no authority has been quoted to us. In Mahomed Meera Rowther v. Kadir Meera Rowther 1914 M.W.N. 63 there was a petition to set aside a sale from want of proper service of an attachment notice. That is a different matter for a sale cannot be set aside on the mere ground of irregularity in proceedings unless it can also be shown that the sale was materially affected by the irregularity. It may also be observed in that case that the learned Judge found that the circumstances of the case showed that as a matter of fact the judgment-debtor had full notice. On the other hand it was held in Nusur MaMomed v. Kazbai I.L.R. (1886) 10 Bom. 202 that
Where the service of summons has been effected on a defendant by affixing a copy of the summons on the door of his dwelling-house, the Court must decide whether the summons has been duly served by such affixing or not, and, if it decides in the negative, a new summons must be issued, or substituted service directed. Before the Court can decide in favour of the sufficiency of this mode of service it must be satisfied that the defendant is keeping out of the way for the purpose of evading service.
6. In that case in spite of an order of the Court to the following effect 'Read bailiff's endorsement on the back of the 'process, stating that the summons has been affixed to the defendant's house on the 22nd December, 1884, at 9 A. m., and proof of the same having been duly taken by me, it is ordered that the summons be returned.' It was held that there was no sufficient service.
7. In the present case there is nothing to show that the Court even looked at one of the returns before ordering the petition. As stated above on Exhibit A the order 'Arrest by 3rd August' is actually written under 'not yet returned'. In the second Exhibit A-l it passed no sort of order holding the service sufficient.
8. In these circumstances it is unnecessary to go into the question whether the process-server exercised due diligence before affixing the notice or whether the return Was fraudulent, but we cannot help observing that all the circumstances of the case raise a very great suspicion that the returns were fraudulent and that probably if the Court had proceeded to pass an order under Order 5, Rule 19, it is very doubtful whether it would have accepted these returns even on their face value as correct. The first point to be noticed about the returns is that, although Exhibit B is said to have been affixed on the 26th April, 1925, the endorsement of the amin is not made until the 29th and although Exhibit B-l is said to have been affixed on the 26th April, the endorsement is not signed until on 24th. If we compare these two endorsements with each other, the internal evidence suggests that they are fraudulent. It is stated in Exhibit B that when enquiries were made on the 26th April, 1925, the female inmates of the house said that the 1st defendant had gone a week ago to Madras. The notice was therefore affixed to the outer door of his dwelling-house. Therefore 1st defendant should have gone to Madras on the 19th April. In Exhibit B-1 it is said that with regard to that notice enquiries were made on the 20th April and the female inmates said that the 1st defendant had gone to Kurivi Kayampatti and other places two days before the receipt of the notice. Thus these two statements by the inmates of the house are flatly contradictory, because according to Exhibit B-1 the 1st defendant had left on the 18th not for Madras but for Kurivi Kayampatti. Looking to the compromise decree and to the fact that Exhibit A-1 was a mere petition for transfer 1st defendant could have had no reason for evading service Therefore it cannot be that the women were uttering deliberate and inconsistent falsehoods. When we reflect that the decree was absolutely inexecutable except on the one matter of failure to hand over the management, on which execution was not being sought, that one of the petitions (that for arrest) was allowed to be dismissed for non-payment of batta and the other became infructuous by making no application for execution to the Court to which the decree was transmitted, and when we also look at the fact that both these execution petitions were on their face barred by limitation, suspicion becomes exceedingly strong that the whole matter was a ruse from the start by means of bogus service to secure by the plea of res judicata execution of an inexecutable decree. It is not, however, as we said, necessary for the purpose of this case to find that the service was not genuine though we strongly suspect it. It is sufficient to say that the Court has not declared it sufficient, as it is imperatively required to do under Order 5, Rule 19, and in a case where it is sought to apply the constructive principle of res judicata against the defendants, the omission is fatal and the appeal must be allowed. We must, however, say that we have great doubts whether in any case the principle of res judicata by mere absence of the other party could in execution proceedings be pushed to the extreme to which it is sought to be done in this case. There is ample authority for instance that, where execution is taken out for an amount greater than that mentioned in the decree, failure to appear by the defendant would not act as res judicata and prevent him from showing in subsequent proceedings that that amount is not due. Vide Kalyan Singh v. Jagan Prasad I.L.R. (1915) 37 All. 589 and Ulaganatha v. Alagappa : AIR1929Mad903 . The latter decision was by a member of the present Bench together with Sir Kumaraswami Sastri, J. An order of execution on such a decree, it was held, does not amount to an order to execute the decree for the exact sum named. The present case is a much more extreme instance. When by the terms of the compromise decree between the parties it has been specifically decided that the enforcement of the decree by means of execution is absolutely barred except on one matter, we are asked to hold that the mere failure to appear on notice of execution petition being taken out when execution is being sought not on that matter, will render every part of the decree executable in spite of the fact that the parties have agreed by the compromise that it is not executable, we should feel very great hesitation to concede such a thing. The only decision which approaches such a view is Ram Kirpal v. Rup Kuari (1883) L.R. 11 IndAp 37 : I.L.R. 6 All. 269 (P.C.). In that case a Court having jurisdiction decided in the course of execution proceedings (in an order which was not appealed against) that the decree to be executed awarded mesne profits according to its true construction. In spite of a subsequent decision of the High Court that the decree on its true construction did not award mesne profits, the Privy Council held that the decision of the Court in execution proceedings had become final between the parties on general principles of law. In that case, however, the question as to whether the decree did or did not award mesne profits was specifically decided by a Court which, as observed by the Privy Council, was competent to decide the matter, whether it decided rightly or wrongly. That is altogether a different thing from saying that without any decision on the matter by a Court, a compromise decree which is by consent of the parties and by its express terms was deliberately made not executable becomes executable on a mere applied principle of constructive res judicata, because the defendants, having had notice, failed to appear on an execution petition. Govinda Menon v. Krishna Mannadiar : AIR1923Mad649 and Dip Prakash v. Bohra Dwarka Prasad I.L.R. (1925) 48 All. 201 quoted for the respondent are not at all parallel. Chidambaram Chetti v. Theivanai Ammal I.L.R. (1923) 46 Mad. 768 : 45 M.L.J. 346 and Nityananda Gantayet v. Gajapati Vasudeva Devu I.L.R. (1901) 24 Mad. 681 : 11 M.L.J. 313 quoted for appellant are more in point. We should imagine also that there must be some distinctness on what< matter, the orders passed on the execution petitions are res judicata. In one of these petitions the only execution which could really have been held to be finally ordered was a mere transmission of the decree. In the other there was a mere order of arrest which was never carried out. Could those orders, without anything further, imply that the elaborate provisions of the decree by which disputes whether provided for or not in the scheme were to be referred to decision by the three families or to arbitration and were not to be taken to Court were to be regarded as superseded Can relief No. 4 of the plaint which was expressly given up in para. 21 of the compromise decree be now obtained by this sort of constructive res judicata We feel we should require very strong authority to accede such propositions but it is not necessary in the view which we have taken to give any final decision on these matters.
9. In the result the appeal is allowed and the execution petition dismissed with costs in both Courts.