1. The execution petition out of which this second appeal arises was marked as E.P. No. 728 of 1940 and was filed on 25th June 1940. The preceding execution petition on which a final order was passed was E.P. No. 270 of 1937, which was dismissed on 25th June 1937. That application was admittedly out of time; but the question is whether the respondent, judgment-debtor 2, is entitled to raise that plea in this application in view of the fact that he did not raise it in E.P. No. 270 of 1937. The first Court held that in accordance with the principle of constructive res judicata, he was precluded from raising that objection in the present execution proceeding. In appeal, the present respondent put forward two reasons why he was not estopped from raising this objection. One was that he was not properly served in that suit, and so had no opportunity of raising the objection; and, secondly, that as that petition was dismissed shortly after the date fixed for his appearance, there was no occasion for him to file any application either to set aside the ex parte decree or to appeal. The respondent also contended that even if he had been served no occasion arose on which he was bound to raise the question of the executability of the decree; because the only notice he received was one under Order 21, Rule 66, Civil P. C. He relied on a Full Bench decision of this Court in Chidambaram Chetti v. Theivanai Ammal A.I.R. 1924 Mad. 1, in support of his contention. The lower appellate Court, although of opinion, that this decision did not apply to the facts of this case, held that as the executing Court had failed to declare that service was sufficient, he was not properly served and that therefore the principle of constructive res judicata could not be applied.
2. Although it is true that E.P. No. 270 of 1937 was dismissed shortly after the date fixed for the appearance of the defendant, that would not mean that the earlier order 'proclaim and sell' was not an order that was binding on him, with its implication of executability. If, for example, defendant 2 had appeared and raised the question of executability, the Court would have had to consider whether the decree was executable or not; and if a decision adverse to defendant 2 had been passed, there can be no doubt that that decision would have been final between the parties, even though shortly afterwards the petition had been dismissed; for the order would have been separately appealable. Similarly, such an order would have been final and conclusive against any person who had failed to raise a defence to the executability of the decree, despite the fact that the execution petition was subsequently dismissed : vide Lakshmanan Chetti v. Palaniappa Chetti : AIR1928Mad1052 and Venkata Ranga Reddi v. Chinna Seethamma ('41) A.I.R. 1941 Mad. 440.
3. It is true that Chidambaram Chetti v. Theivanai Ammal A.I.R. 1924 Mad. 1 bears some resemblance to the present case, in that the appellant here seems to have asked the Court to issue a notice to the judgment-debtors under O.21, Rule 66, which relates to the settlement of the terms of proclamation, and not under Order 21, Rule 22, which relates to the executability of the decree. We do not however know what the terms of the notice were. We must assume that as an order under Order 21, Rule 22 was necessary, in view of the fact that more than two years had elapsed from the date of the decree, the notice was under Order 21, Rule 22, as well as under Order 21, Rule 66. That defendant 2 realised that he could raise objections to the executability of the decree is shown by the fact that he later asked the Court to limit the sale to certain items of property. The learned Judges in the Full Bench decision were at pains to point out that their decision was limited to the facts of that case; and it can be distinguished on the ground that no notice under Order 21, Rule 22 was there necessary and none was sent.
4. Although it is the duty of the Court to declare the service to be sufficient if the service is not a personal one; yet decisions of this Court from 3 Ind.Cas. 474, onwards have consistently held that the omission to expressly declare a service sufficient does not mean that there has been no due service. This principle has been very recently stated in Govinda Krishna Aiyar v. Sankaralinga Naicker A.I.R. 1943 Mad. 55, and a little earlier in A still earlier decision to the A.I.R. 1940 Mad. 213 same effect is Mohamed Meera Rowther v. Kader Meera Rowther A.I.R. 1914 Mad. 153, which purports to follow In re Sri Krishnadoss (1909) 3 I.C. 474. The learned advocate for the respondent relies on observations in Azhagappa Chetti v. Ramanathan Chetti A.I.R. 1933 Mad. 466 and Ramanadhan v. Veerappa : AIR1937Mad84 which seem to lay down the rule that unless all the formalities that the law prescribes have been strictly complied with, the principle of constructive res judicata should not be applied; so that if the Judge omits to declare the service sufficient, the decree-holder cannot rely on this plea. Nevertheless, the learned Judges in Azhagappa Chetti v. Ramanathan Chetti A.I.R. 1933 Mad. 466 found it necessary to distinguish Mohamed Meera Rowther v. Kader Meera Rowther A.I.R. 1914 Mad. 153, on the ground that there it was certain that the judgment-debtor had received notice of the execution of the decree, whereas in the case before them it was not. The facts that called for the observations referred to above in Ramanadhan v. Veerappa : AIR1937Mad84 were that the decree-holder sought to avail himself of the failure of the judgment-debtor to raise a plea in a later execution petition and to apply the principle of res judicata to an earlier execution petition between the same parties that was decided subsequently. The learned Judges refused to apply it in such a case. An examination of the various decisions indicates that 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 sufficient, or whether the facts of the case left in some doubt the question whether there was a proper service or not. In the present case, defendant 2 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. Under such circumstances, the executing Court would undoubtedly have considered the service sufficient. When one considers the nature of the excuse offered and the fact that the executing Court immediately ordered 'proclamation and sell,' it becomes clear that the executing Court did consider the service sufficient. If the service was sufficient, then defendant 2 was bound by all orders passed which impliedly decided any questions that he might have raised with regard to the executability of the decree. I am, therefore, of opinion that the lower appellate Court was wrong in refusing to allow execution to proceed against the son as well as against the father. The appeal is allowed with costs in this Court and in the lower appellate Court, and the order of the first Court is restored.