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M.R.A.L. Lakshmanan Chetty Vs. M.R.A.P.L. Palaniappa Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad1052
AppellantM.R.A.L. Lakshmanan Chetty
RespondentM.R.A.P.L. Palaniappa Chetty
Cases ReferredAyyar v. Raja Rajeswara Sethupathi
Excerpt:
.....as already observed that the decree is a living decree and that it is capable of execution and that it is an unsatisfied decree. 200 to be paid to the respondent on 7th january 1924, whereupon he endorsed that no moveables were found and that the warrant of attachment may be returned. we hold that such service is good service on the appellant. substituted service was effected about 10th november 1923. the court held the service good on 21st november 1923; and the order, that execution will proceed and the defendant's properties will be attached was not made till 17th december 1923. even, though the defendant was, in the federated malay states he had sufficient time to appear before the court or to make arrangements for opposing the application. 357, it was held that the absence of..........before execution could issue. e.p. no. 149 of 1922 was filed on 7th december 1922 and the court ordered notice to the judgment-debtor. the notice was affixed to his house. more than one notice was taken and as the court was informed that the appellant was residing at singapore, it ordered notice to singapore. the notice was returned unserved for want of proper address. and the court ordered substituted service on 21st november 1923 and held that substituted service had been effected on the appellant. on 17th december 1923 the court passed the following order: ' execution will proceed; attachment ordered for 21st january 1924. ' the order that execution will proceed implies that the execution of the decree was not barred and that the decree was an unsatisfied decree. the contention.....
Judgment:

Devadoss, J.

1. The respondent applied for execution of the decree in O.S. No. 151 of 1913 and relied on an application of 1922 for saving the bar of limitation, and the contention of the appellant that the application of 1922 was barred by limitation was rejected by the Subordinate Judge on the ground that he was barred by res judicata from raising the contention. Hence this appeal. It was well settled so far back as Mungal Pershad Dichit v. Grija Kant Lahiri [1882] 8 Cal. 51, that orders in execution operated as res judicata. In that case the Privy Council held that

although the execution of a decree may have been actually bired by time at the of date an application made for its execution, yet, if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid.

2. This case was followed in Subbiah Naicker v. Ramanathan Chettiar [1914] 37 Mad. 462, and Mazzam Hussen Mandal v. Sarat Kumari Debi [1910] 11 CRI.L.J. 357. The appellant argues that there has been no express decision that the application of 1922 was in time, and in the absence of an express decision to that effect the principle of constructive res judicata should not be applied to it. When an application is made to a Court for execution, notice is ordered to judgment-debtor to show cause why the decree should not be executed against him. If the judgment-debtor does not show cause the Court orders execution of the decree either against the person or against his property according to the terms of the decree. The implication of that order is that the applicant has a right to execute the decree and that it is an executable decree and that it is not barred by limitation, and that the judgment debtor is liable to satisfy the decree. In the absence of opposition by the judgment-debtor, the Court is not bound to write an order in extenso on any of the above points. It is only when the judgment-debtor opposes the application for execution and urges certain grounds, that the Court is called upon to consider the grounds and give its reasons. The order of the Court '' execute ' or ' attach ' implies that the Court has considered all that need be considered before execution could issue. E.P. No. 149 of 1922 was filed on 7th December 1922 and the Court ordered notice to the judgment-debtor. The notice was affixed to his house. More than one notice was taken and as the Court was informed that the appellant was residing at Singapore, it ordered notice to Singapore. The notice was returned unserved for want of proper address. And the Court ordered substituted service on 21st November 1923 and held that substituted service had been effected on the appellant. On 17th December 1923 the Court passed the following order: ' Execution will proceed; attachment ordered for 21st January 1924. ' The order that execution will proceed implies that the execution of the decree was not barred and that the decree was an unsatisfied decree. The contention that there was no decision on the point of limitation cannot be upheld in the teeth of the order that execution will proceed.

3. In Subbiah Naicker v. Ramanathan Chettiar [1914] 37 Mad. 462 the facts were: On the application No. 389 of 1909 notice was ordered to issue to defendants to show cause why the decree should not be executed by sale of properties which had been attached long ago and which attachment was still subsisting. This order was passed by the District Munsif's Court of Srivilliputtur and in 1910 the properties attached by the District Munsif's Court, Srivilliputtur, were transferred to the jurisdiction of the Additional District Munsif's Court of Tinnevelly. The decree-holder applied to the Additional District Munsif's Court of Tinnevelly that the execution proceedings started by the Srivilliputtur District Munsif's Court may be continued in the Additional District Munsif's Court, Tinnevelly. The District Munsif, Tinnevelly, held among other things that the ex-parte order of the Srivilliputtur District Munsif's Court could not be treated as estopping defendant 2 so as to preclude him from objecting to the minor respondent executing the decree on the ground of limitation 'and on the ground that the right to execute has not been satisfactorily proved. The High Court held that an ex-parte order in execution proceedings passed after issue of notice and after the Court has held that the service of notice was. duly effected, is on general principles binding as res. judicata. The learned Judges observe at p. 474:

It has now been settled-see Har Chandra v. Bepin Behari [1911] 13 CRI.L.J. 38, that an ex-parte decree does-operate as res judicata. See also Venkata. ' Perumal v. Ramasami Chetty [1912] 35 Mad. 75, where, Sen-son and Sundaram Ayyar, JJ., express the view that an ex-parte decree does estop the parties to the suit from disputing its validity afterwards. This effect of an ex-parte decree or order passed after notice (declared to be duly served on the respondent) does not rest merely upon the provisions of Section 11, Civil P.C. but upon general principles of jurisprudence. Though as pointed out by the Privy Council in Thakur, Prasad v. Fakir Ullah [1895] 17 All. 106, the special provisions of the Civil Procedure Code like the old Sections 43 or 373 or 103, which preclude a litigant from bringing a fresh suit in respect of certain claims though they had not been actually heard and decided in the first suit, could not apply to execution proceedings, the general principles of jurisprudence which govern the Courts as regards res judicata or estoppel by record do apply to execution proceedings and have been so applied following the well-known case of Mungal Pershad Dichit v. Grija Kant Lahiri [1882] 8 Cal. 51, by all the Indian Courts.

4. The above extract lays down clearly the principle governing orders in execution proceedings.

5. It is strongly urged that the dismissal of the execution application of 1922 must be taken to imply that all the orders passed on it have been either vacated or have ceased to have effect. This argument is, on the face of it, fallacious. When the Court orders execution of a decree it holds as already observed that the decree is a living decree and that it is capable of execution and that it is an unsatisfied decree. The subsequent dismissal of the execution application, either for want of prosecution or owing to inability of the process of the Court to reach the judgment-debtor or his property, does not imply that the orders passed on the application ceased to have effect. Supposing if the order to execute was passed after hearing the objections of the judgment-debtor that the decree was barred by limitation and the Court overruled the objections and ordered execution to proceed, could it be reasonably contended that there was no order which would bind the judgment-debtor on the question of limitation? In this case the Court finds that attachment of moveables was ordered and the appellant's wife caused Rs. 200 to be paid to the respondent on 7th January 1924, whereupon he endorsed that no moveables were found and that the warrant of attachment may be returned. It is the practice of the Courts, when execution is thwarted, to dismiss the application and allow the decree-holder to apply again. The dismissal of the application of 1922 after part satisfaction cannot in any way affect the force of the orders passed on it.

6. It is next urged that notice of the application of 1922 was not served upon the appellant and therefore the order on that petition could not bind him. As stated above the notice with copy of a petition was ordered on 21st December 1922 and notice was affixed to appellant's house before 31st January 1923. The notice was ordered to the defendant at Singapore on 12th March 1923. The notice was returned unserved for want of proper address. It was only after that, that substituted service was ordered. Substituted service was served in the manner prescribed by law and there is no reason to think that the usual formalities were not observed. The presumption is that the official acts are done in the manner provided by law. The appellant's contention is that he was unaware of these proceedings. He repudiates the payment by his wife and says he was not aware of it. It is impossible to believe that the appellant was unaware of what was going on. When the decree-holder does all that is required of him by law to do, the judgment-debtor is not entitled to defeat his claim on the ground that he has successfully evaded personal service of notice. Notice was served by affixture to his last-known place of residence and his wife was living there at the time. We hold that such service is good service on the appellant. Over and above that, the appellant was served by substituted service and such service has been held by this Court to amount to personal service; vide Shariba Bibi v. Abdul Salam A.I.R. 1928 Mad. 815.

7. The cases relied upon by the appellant have no application to the present case. In Mirza Ally Bebanee v. Ryder Hossein [1877] 2 Bom. 449 it was held that notice, in order to be valid notice, must give sufficient time to enable the judgment-debtor to come and oppose the application. It is urged that notice of substituted service did not give sufficient time to enable the appellant to appear before the Court and urge his objections. Substituted service was effected about 10th November 1923. The Court held the service good on 21st November 1923; and the order, that execution will proceed and the defendant's properties will be attached was not made till 17th December 1923. Even, though the defendant was, in the Federated Malay States he had sufficient time to appear before the Court or to make arrangements for opposing the application. We hold that the notice in this case gave the appellant sufficient time to appear before the Court and press his objection, if he had any. In Mazzum Hussein Mandal v. Sarat Coomari Debi 11 CRI.L.J. 357, it was held that the absence of notice to the judgment-debtor gave him a good ground to question orders in execution passed at one stage of the proceedings at a later stage of the proceedings. The principle of the decision in Man Mohan v. Dwarka Nath 12 Cri.L.J. 312, is against the appellant. In Varadiah v. Venkata Perumal : AIR1914Mad663(2) , it was held that an order' in execution proceedings cannot operate as res judicata when notice has not been ordered to the judgment debtor. In Sub-ramania Ayyar v. Raja Rajeswara Sethupathi [1917] 40 Mad. 1016, the notice to the respondents was only to show cause why they should not be brought on record as the legal representatives of the deceased judgment-debtor for purposes of execution. They did not appear and an order was made ex parte making them parties, There was no notice to them as to what pro-parties were to be attached. An application to set aside the attachment on the ground that the properties did not belong to the judgment-debtor was held not birred. There was a distinct finding that:

they had no notice that any particular property was going to be attached; when they came to know that an order was passed to attach the properties they immediately filed a petition praying for the cancellation of that order.

8. When no notice is given to the judgment-debtor or when the notice does not specify what is going to be done, any order passed on the execution application will not operate as res judicata in subsequent proceedings. We may in this connexion refer to a recent decision of this Court in Civil Miscellaneous Appeal No. 455 of 1925, to which one of us was a party, wherein it was held that an order for execution after notice to the judgment-debtor could not be challenged afterwards. We hold that the appellant is barred by res judicata from raising the contention that the execution application of 1922 was barred by limitation. There is no other point in the case. The appeal fails and is dismissed with costs.

Jackson, J.

9. I agree with this.


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