1. The facts with reference to which this second appeal is sought to be filed have been set forth clearly both in the judgment of the first court, and the judgment of the learned District Judge in appeal. We are now concerned with the question which originally arose under issue 5, whether the suit was barred by the principle of constructive res judicata in view of the order on E. A. No. 114 of 1956.
2. As the learned District Munsif observes, E. A. No. 114 of 1956 was a petition filed by the first plaintiff and an order was passed dismissing it on 5-3-1956. Admittedly, the first plaintiff did not come forward with a suit under Order XXI, Rule 63, C. P. Code within a year from the date of this order. The first Court relied upon the following decisions : Aisamma v. Moidin Kunhi Beari, 45 MLJ 690 : (AIR 1924 Mad 111), Nara-simha Chariar v. Raghava Padayachi : AIR1945Mad333 and Cannanore Bank Ltd. v. Madhavi, : AIR1942Mad41 , for the view that the order would be conclusive, and would bar any further suit of this character, unless the order is challenged within a year as provided for by the processual law.
In dealing with the same point, the learned Additional District Judge dealt with the contention that the order passed in E. A. No. 114 of 1959 was not oil the merits, but that that application had been dismissed upon, the ground that the petition was belated. The learned Judge has set forth two passages, the first from Venkataratnam v. Ranga-nayakamma, ILR Mad 985 : (AIR 1919 Mad 738) and the second Mt. Asiz Jahan v. Sardar Singh, (S) : AIR1955All241 (FB). In the Full Bench decision of this court referred to earlier, it has been very clearly stated that an order rejecting a claim petition for belatedness is, in effect, an order rejecting the claim itself, to which the provisions of Oder XXI, Rule 63 would apply.
3. This second appeal is sought to be filed upon the basis that the view of the law taken by the two courts below is erroneous. The ground of appeal is that a somewhat different view of the law has been taken in other decisions of this court to which attention has not been paid, particularly in Manicka Mudali v. Abdul Karim, AIR 1935 Mad 1015, and President Co-operative Credit Society, Kaikaran v. Narasimha Rao : AIR1941Mad77 . I shall immediately turn to these decisions, in order to see whether in any manner they affect the applicability of the principles of the Full Bench decision in ILR Mad 985 : AIR 1919 Mad 738 , to the facts of this character.
4. : AIR1935Mad1015 , was a decision of a single Judge (Varadachariar J.) in which the order passed by the executing Court was both vague and difficult to classify as a final order upon the claim petition. In terms, that order declared that the claim would be notified, and that the petition was recorded subject to that notification. The learned Judge (Varadachariar J.) expressed his regret at this land of practice, and finally observes that even if a dismissal of a claim petition should be interpreted as an implied adjudication against a claim, the order passed in the particular case could not even be considered as a final order on the claim petition, and that it did not preclude the executing court on a later occasion from investigating the claim on the merits.
5. In the present case, this decision has no application at all to the facts. Here it is not the executing court which is later investigating the claim on the merits, but the plaintiffs have come forward with an actual suit for a declaration of their rights. Again, the order on the claim petition in this case was definitely a final and conclusive order, though the actual ground on which the claim petition was dismissed was one of belatedness.
The other decision relied on by the learned counsel, : AIR1941Mad77 , is not relevant to this context at all. That decision held that where the order in execution merely directed that the existence of a mortgage should be brought to the notice of the bidders at the auction, the order did not fall within the purview of Order XXI, Rule 63, C. P. Code so as to attract the applicability of Article 11 of the Limitation Act.
6. Consequently, I am of the opinion that both the courts below took the correct view of the law, and that the position that a suit of this character is barred by constructive res judicata is very well settled by authority, and not in doubt. The second appeal is accordingly dismissed in limine.