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Chockalingam, Minor by His Mother and Guardian, Ammakutti Ammal Vs. the Madura Meenatchi Sundareswarar Devasthanam, Through Its Manager, P.S. Anantharama Iyer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.1141a
AppellantChockalingam, Minor by His Mother and Guardian, Ammakutti Ammal
RespondentThe Madura Meenatchi Sundareswarar Devasthanam, Through Its Manager, P.S. Anantharama Iyer
Cases ReferredRamasami Naik v. Ramasami Chetti
Excerpt:
civil procedure code act xiv of 1882), sections 13, 248 - execution application--notice to defendant to show cause why decree should not be executed--contents of the application not mentioned in the notice--ex parte order for execution--res judicata. - .....movables was made after notice. there is nothing to show what the contents of that notice were, and the defendant did not appear. the matter is, therefore, carried no further. we, therefore, reverse the decree of the district judge and restore the order of the district munsif, withdrawing the attachment with costs in this and in the lower appellate court.
Judgment:

1. We are unable to agree with the District Judge that the appellant's claim is res judicata by reason of the order for attachment passed on the execution application, The decree against the defendants was that he should pay the decree amount out of the assets of the deceased father in his hands. On the execution application, notice under Section 248, Civil Procedure Code, was issued, but that was merely a notice to show cause why the decree should not be executed. The defendant did not appear and the order for attachment was passed. As was pointed out in Ramasami Naik v. Ramasami Chetti; 2 M.L.T. 167 'when it is endeavoured to obtain execution of something, not granted by the decree, mere notice to the defendant that further Execution is to be applied for, will not be sufficient to make the order res judicata against him. And where the application is not for the execution of something which has been directed to be done by any decree or order, so as ipso facto to carry information as to what the claim made and the relief prayed for are, a notice to the judgment-debtor without inserting the specific prayers will not render the order made upon such application res judicata.'

2. These remarks apply exactly to the present case. Reliance is placed upon the facts that in a previous application for execution an order for the attachment of the defendant's movables was made after notice. There is nothing to show what the contents of that notice were, and the defendant did not appear. The matter is, therefore, carried no further. We, therefore, reverse the decree of the District Judge and restore the order of the District Munsif, withdrawing the attachment with costs in this and in the lower appellate Court.


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