1. The application E. A. No. 596 of 1965 in E. P. No. 593 of 1964 in O.S. No. 324 of 1961 out of which this appeal arises was instituted by Thiruvalloor Pillai, the appellant herein, under Section 47 and Order 21, Rule 53, Civil P. C. for setting aside a court auction sale held on 23-8-1965 under the following circumstances:
The first respondent herein, Ramaswami Naidu, obtained a decree in O. S. No. 324 of 1961 the suit referred to above, on a promissory note against Kanakavalli Ammal the mother of the appellant and his three brothers on 17-8-1961. Kanakavalli Ammal died on 17-9-1961 and after her death the appellant herein and his three other brothers were impleaded as her legal representatives in E. A. 311 of 1962 in E. P. 208 of 1962 after due notice to them. In the first E. P. No. 208 of 1962 the property in dispute was attached as belonging to the estate of the deceased Kanakavalli Ammal in the hands of the appellant and his brothers; but the execution petition was dismissed on 14-8-1962 as not pressed; but the attachment was kept alive for six months. In the second E. P. 598 of 1962, the property in question amount other properties which was under attachment was brought for sale and that petition was dismissed on 16-11-1963, for default on the part of the first respondent-decree holder due to his failure in not taking steps.
2. Later on E. P. No. 593 of 1964 out of which the appeal arises was filed by the first respondent for attachment of the property in dispute as well as other items. The property was attached and notice under Order 21, Rule 66, C. P. Code was personally served on the appellant and as he was absent he was set ex parte on 3-4-1965. On the adjourned date (6-5-1965) the terms of proclamation were settled and the property in dispute was ultimately sold in court auction sale held on 23-8-1965 to the second respondent.
3. The appellant has thereupon preferred the present application, E. A. No. 596 of 1965 under Section 47 and Order 21, Rule 58, C. P. Code for setting aside the sale. It is urged that Kanakavalli Ammal had settled the property in dispute on the appellant and his three brothers giving them each an undivided one-fourth share in the property, reserving for herself only a life estate till her death. Disagreeing with the learned District Munsif the learned Additional Subordinate Judge, Vellore, had held that the settlement deeds executed by Kanakavalli Ammal in favour of the appellant and his three brothers are true, valid and acted upon, that Kanakavalli Ammal had merely a life interest in the disputed property during her lifetime, that after her death the appellant and his brothers became entitled to a life interest in the disputed property and that, on the date when execution of the decree was sought after the death of the lady, the lady had no more interest in the property, and that the appellant and his brothers were having a life estate in the properties independently in their own right. This finding is amply borne out by the evidence on record and I do not find any material whatsoever for interfering with the well-considered judgment of the learned Subordinate Judge.
4. The second major contention which requires closer scrutiny is based upon the doctrine of res judicata. It is contended on behalf of the first respondent decree holder that the appellant had knowledge that the property was attached and brought to sale as the property of the deceased in his hands, that he was bound to have set up his independent title at the stage of attachment and also on receipt of the notice under Order 21, Rule 66, C. P. Code and that, as he had failed to do so in the earlier execution proceedings, he is barred by the doctrine of res judicata from setting up his title in his application for setting aside the sale.There is clear evidence, and it is not challenged, that the property was attached as the asset of the deceased in the hands of the appellant and his brothers in E. P. 208 of 1962 as well as E. P. 593 of 1964 after due notice to the appellants nor is it disputed that notice under Order 21, Rule 66 for settlement of the terms of the proclamation was personally served on the appellant in E. P. No. 593 of 1964 and that, as he was absent he was set ex parte on 29-6-1965. On these admitted facts I have no doubt in my mind that the appellant must fail in his application on the ground of constructive res judicata.
5. If the legal representative of the deceased decree holder had not been served with a notice under Order 21, Rule 24, Civil P. C. and had been served only with a notice under Order 21, Rule 66 for the first time, there can be no doubt that the legal representative would be entitled to say that he had no notice that the property was sought to be sold as that of the deceased judgment debtor and that he was not therefore bound to set up his title at that stage.
6. In Chidambara v. Kandaswami, ILR 46 Mad 768 : AIR 1924 Mad 1 a Full Bench of this court has observed--
'Where there is nothing more than the non-attendance at the hearing of an application to settle the terms of a sale proclamation, the non-applicant cannot be taken to be estopped by the principle of res judicata thereafter so as to prevent him from pleading that the property was not liable to attachment in execution by reason of that non-attendance.'
Schewabe, C. J. had observed (at page 5) that, as by a formal noticed under O. 21, R. 66 the legal representative was not asked to show cause as to anything and he had no intimation at all that the matter would be open to him to raise or that it would be discussed, under those circumstances, it is not possible to hold that his non-appearance on that occasion amounts to a decision against him that the property was the property of the judgment-debtor.
7. In Soorianayarana v. Shenbagathammal : AIR1945Mad77 , Kuppuswami Aiyer, J. has, after referring to Bench decision of this court in Kaliaperumal Naidu v. Subramania Chettiar, : AIR1928Mad203 , and the decision of the Full Bench in AIR 1924 Mad 1 referred to above, observed that the question whether, after the service of a notice under O. 21, R. 66 upon the judgment debtor, the fact that he did not attend the court at the hearing of the application to settle the terms of the sale proclamation can estop him from subsequently disputing the liability of the property for being sold, depends on the particular circumstances of each case.
8. The judgment in AIR 1924 Mad 1 was followed by a Division Bench of the Andhra Pradesh High Court in Raghava Reddi v. Krishnayya. : AIR1960AP631 , and Chandra Reddy C. J. has stated the law thus:--
'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 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. The being the position there is no scope for invoking the doctrine of res judicata.' The law is thus settled that, where the judgment debtor or his legal representative was served only with a notice under Order 21, Rule 66, Civil P. C. and nothing more is alleged, the principle of constructive res judicata cannot be invoked for the purpose of defeating them from setting up their own title in subsequent proceedings.
9. The further question is whether the principle of constructive res judicata can be successfully invoked in a case where the judgment debtor of the legal representative had notice of the execution and the attachment proceedings under Order 21, Rule 24 Civil P. C. It appears to me well settled that the doctrine can be successfully invoked in such cases. It must be remembered that Schewabe, C. J. had, while delivering judgment in Chidambaram's case. AIR 1924 Mad 1 taken care to say that the decision in that case must be taken to be confined to the particular facts of that case, that is to say, where the court had nothing more than the non-attendance at the hearing of an application to settle the terms of a sale proclamation the respondent cannot be taken to be estopped by the principle of res judicata thereafter in respect of the liability of the property to execution by reason of that non-attendance. It is also significant that Ramesam, J., one of the learned Judges who constituted the Full Bench, has quoted the following observations made by a Bench of this court in Subramaniam v. Raja Rameswara, ILR 40 Mad 1016 : AIR 1918 Mad 1167 and entirely agreed with the principle underlying those observations:
'One principle seems to be clear and that is, that the party who is sought to be affected by the bar of res judicata should have notice of the point which is likely to be decided against him and should have an opportunity of putting forward his contentions against such a decision. In the present case no notice went to the respondents to show cause why they should not be brought on the record as the legal representatives of the deceased judgment debtor for the purpose of execution. They had no notice that any particular property was going to be attached. We must therefore overruled this plea.'
The decision of Krishnaswami Nayudu J. in Adisesha Aiyar v. Pappammal, : AIR1950Mad341 tacitly approves of this principle and in that case the decision went against the plea only because the properties which were sought to be attached and sold in the previous E. P. were different from the properties in the subsequent application.
10. On behalf of the appellant serious reliance is placed upon the decision of Varadachariar, J. in Machamma v. Kanakamma, AIR 1934 Mad 923, where the learned Judge has observed at page 924--
'It is fairly well settled that when a person who has been impleaded as the L. R. of a defendant or a judgment debtor claims that certain properties attached as the property of the judgment debtor are his own, his remedy is by an application under Section 47 and not by an application under Order 21, Rule 58.' On the strength of those observations, if is contended that it is not obligatory on the part of the legal representative who receives notice of an attachment of property as that of the deceased judgment debtor in execution of a decree against the judgment debtor to set up his own title and that it is open to him to allow the attachment and sale of the property without protest and to set up his title in an independent application under Section 47, Civil P. C. The observations made by the learned Judge must be read in the context in which they were made; and the facts set out in that judgment do not appear to sustain the appellant's contention. In that case, as the judgment debtor died before execution was completed, his widow was added as his legal representative; and when the creditor attached certain properties as belonging to the deceased husband, the widow filed an application both under Section 47 and Order 21, Rule 58, C. P. Code. It does not appear that she allowed the execution to continue and that the attachment was made without protest. On the other hand, it is clear that she had immediately filed an application under Section 47 and Order 21, Rule 58 to assert her own independent title in derogation of the rights of her deceased husband. I am therefore unable to say that this decision lends any support to the appellant's contention.
11. The decision of a Full Bench of this court in Mohanram v. Sundararamier. AIR 1960 Mad 377 is clearly distinguishable on facts. In that case the objection that the mortgaged property which was a service inam land was inalienable was not taken before the mortgage decree was passed and was raised only to the saleability for the first time in the executing court; and the learned Judges held that there was no bar of a constructive res judicata as the alienation of service inam lands is prohibited on grounds of public policy either by statute or under the general law. Admittedly the question of statutory prohibition or public policy is not involved in this case. The decision of the Supreme Court in S. P. Shah v. B. N. Singh, : 3SCR908 also can have no application to this case. That was a case of dismissal of the judgment debtor's objection to the execution for default on the part of the judgment debtor; and it was held that the later application by the judgment debtor on the same grounds was not barred by the principles of res judicata. The Supreme Court had observed that the plea must have been heard and finally decided by the Court; but this is a case of constructive res judicata and the observations made by the Supreme Court are obviously inapplicable here.
12. This is a clear case where the appellant was added as the legal representative of the judgment-debtor, his deceased mother, after due notice and where the property was attached in the earlier application E. P. N. 208 of 1962 and also subsequently in E. P. No. 593 of 1964 out of which the present appeal arises, also after due notice, and there is the additional fact that, due notice under Order 21, Rule 66 had also been served on the appellant before the sale was proclaimed and made; and it is not pretended that the sale notice did not disclose the identity of the property proposed to be sold in the execution proceedings. These facts clearly establish that the appellant brought on record as the legal representative of his deceased mother, had clear notice that the property in dispute was attached and brought to sale as belonging to the estate of the judgment debtor, his deceased mother; and I have no doubt in my mind that the appellant was bound under these circumstances to assert at that stage his title to the property sought to be attached and sold. This is a clear case where the provisions of Explanation IV to Section 11, Civil P. C. are clearly attracted.
13. In the result, the appeal fails and is dismissed; but, under the circumstances, without costs. Leave granted.