Pandrang Row, J.
1. These appeals arise out of certain execution proceedings in the Court of the Subordinate Judge of Ramnad at Madura, namely E.P. No. 104 of 1928, E.A. No. 436 of 1929 and E.P. No. 42 of 1931. The Substantial petition was E.P. No. 104 of 1928 in which Veerappa Chettiar and his four minor brothers were the petitioners and they sought as attaching decree-holders in O.S. No. 330 of 1911 to execute the decree in O.S. No. 153 of 1910. E.A. No. 436 of 1929 was for rateable distribution by the same petitioners and it was heard along with E.P. No. 104 of 1928 and both were disposed of by one and the same order. The learned Subordinate Judge found that the decree-holder in O.S. No. 153 of 1910 who was the judgment-debtor in O.S. No. 330 of 1911 was barred or estopped from setting up the plea that the execution of the decree in O.S. No. 330 of 1911 was barred by limitation. Though as a matter of fact he found that the decree was barred by limitation he found however that, in the absence of an application to execute the decree in O.S. No. 330 of 1911, E.P. No. 104 of 1928 was not maintainable except to the extent of the costs allowed in appeal No. 26 of 1918 on the file of the High Court in favour of the petitioners and the costs of execution in respect of those costs. In substance, therefore, E.P. No. 104 of 1928 ended against the petitioners. The other application E.A. No. 436 of 1929 shared the same fate. E.P. No. 42 of 1931 was an application put in after the disposal of the other two petitions and it was for liberty to execute the decree in O.S. No. 153 of 1910, and it proceeded on the basis that E.P. No. 104 of 1928 had not been dismissed and was still pending. That petition which was heard by a different Subordinate Judge was also dismissed though the principal findings by the learned Judge were in favour of the petitioners. He held that, though E.P. No. 104 of 1928 must be deemed to have been dismissed on 17th March 1931, nevertheless liberty if necessary could be given to execute the decree in O.S. No. 153 of 1910, and that the decree-holder in that suit was barred by res judicata from pleading that the execution of the other decree was barred by limitation. The Judge further found that liberty to execute the decree was really unnecessary, and he declined to give such liberty because it was unnecessary.
2. C.M.A. No. 344 of 1931 is the appeal by Ramanadhan Chettiar the legal representative of the judgment-debtor in O.S. No. 330 of 1911, and the respondents are Veerappa Chettiar and his four minor brothers. In C.M.A. No. 394 of 1932 the parties are arrayed similarly, and that is an appeal from the order in E.P. No. 42 of 1931, whereas C.M.A. No. 344 of 1931 is an appeal from the order in E.P. No. 104 of 1928. The remaining. C.M.A. No. 234 of 1932 is from the. order of the Subordinate Judge in E.P. No. 104 of' 1928 dated 8th February 1.932 to the effect that the petition had already been dismissed on 17th March 1931. For the purpose of convenience the appellant in C.M.A. No. 344 of 1931 and 0. M.A. No. 394 of 1932 will be referred to as the appellant, and Veerappa Chettiar and his. brothers who are the respondents in these appeals and the appellants in C.M.A. No. 234 of 1932 will be referred to as the respondents.
3. About the facts there is no dispute and the facts consist mainly of the proceedings in Court. The respondent's father was the assignee of a major portion of the decree in. O.S. No. 330 of. 1911. He died sometime in 1924 and the respondents came on record thereafter. The suit O.S. No. 330 of 1911 was instituted on foot of a mortgage, and the preliminary decree therein was made on 7th December 1912. Even in that decree the personal liability of the principal defendant who is the father of the appellant is declared. The final decree was dated 5th February 1915, and instead of that decree itself embodying a conditional decree personally against the mortgagor for the balance due after sale it merely provided that the plaintiff be at liberty to apply for a personal decree for the amount of such balance. It was sometime after this final decree that the respondent's father got the assignment of a portion of the decree in the other suit. He applied in 1923 in E.A. No. 151 of 1923 as assignee decree-holder for a personal decree against the assets of the appellant's father. That application was made on 11th April 1923, and a personal decree was actually passed on 11th August 1923. On 26th July 1923 while this application was pending, another application, namely E.A. No. 174 of 1923, for attachment of the decree in O.S. No. 153 of 1910 was put in. On this petition attachment and notice were ordered on 30th July 1923. The notice of attachment was actually signed on 14th August 1923, that is to say, three days after the personal decree had been passed, and it appears to have been received by the Court to which it was issued on 17th August 1923, and the attachment was made absolute on 10th October 1923. It may be mentioned in this connection that after 1925 the Court to which the notice was issued ceased to exist and the jurisdiction of that Court became vested in the Court which issued the notice. The personal decree in question was for a sum of about three lakhs and a quarter with interest. Apparently the only means of executing this personal decree was by proceeding in execution of the decree attached i. e., the decree in O.S. No. 153 of 1910. Execution of that decree however had been stayed by the High Court in connection with the appeals preferred by various parties thereto.
4. The appeals which were filed in 1918 and 1919 were disposed of only on 26th April 1928. In some of those appeals the respondent's father and after his death the respondents themselves were impleaded at their own request and the appeals were prosecuted to their conclusion. It was apparently because that decree was pending in appeal and had been stayed that no steps were taken to execute the decree in O.S. No. 330 of 1911. The appellate decree of the High Court in these appeals though dated 26th April 1928 allowed time till 2nd September 1928 for payment, and the present E.P. No. 104 of 1928 was presented the very next day, that is to say 3rd September 1928. In fact the numerous proceedings clearly show that the respondents' father and the respondents themselves after their father's death were taking step after step for the purpose of realizing the fruits of the decree obtained against the appellant's father. There was no lack of diligence on their part so far as can be seen. Sometime after E.P. No. 104 of 1928 was presented ; exactly seven days afterwards, another application was presented, namely E.P. No. 252 of 1928. On that petition notice was ordered and attachment was ordered later on, the notice having been refused and therefore affixed. Ultimately that petition itself was dismissed as a result of the judgment of the High Court in certain revision petition against an order for rateable distribution. It is necessary to refer to this petition because the order on this petition dated 8th October 1928 directing attachment is relied upon by the respondents as an order which bars the appellant from pleading that the execution of the decree in O.S. No. 330 of 1911 is barred by limitation.
5. The preliminary point for decision in these appeals is whether this order dated 8th October 1928 constitutes res judicata and thereby debars the appellant from pleading that the execution of the decree in O.S. No. 330 of 1911 is barred by limitation. No doubt that order was passed on an application to execute the decree and if notice had been served in person on line judgment-debtor and he had failed to appeal to object to the execution being allowed on the ground that the execution is barred by limitation, his failure to do so coupled with the order for attachment would constitute a bar in any later proceeding. In this particular case however there was no personal service nor was there any declaration by the Court that there was sufficient service. This question was considered by a Bench of this Court in Azagappa Chetti v. Ramanathan Chettiar AIR 1933 Mad 466 and it was held therein that unless there is declaration by the Court that the service made Under Order 5, Rule 17 is sufficient as required by the provisions of Order 5, Rule 19, Civil P.C., any order passed by the Court in the absence of the judgment-debtor will not constitute res judicata. It is obvious that the principle of constructive res judicata cannot be applied unless the party against whom it is sought to be applied has had notice of the proceeding in which the order relied upon as res judicata was passed. In this particular case there was no such notice personally served and the notice was affixed on the ground that it had been refused. No doubt in Azagappa Chetti v. Ramanathan Chettiar AIR 1933 Mad 466 affixture was made by the reason of the reported absence of the defendant from his house, and a distinction has been sought to be drawn by the learned Subordinate Judge who disposed of E.P. No. 42 of 1931 between the case and the present case on this ground, namely that whereas in the former case the affixture was by reason of the absence, in the present case the affixture was by reason of refusal; it is on account of this distinction that the learned Subordinate Judge did not follow the decision in Azagappa Chetti v. Ramanathan Chettiar AIR 1933 Mad 466.
6. It is however clear that the provisions of Order 5, Rule 19 which were relied upon in Azagappa Chetti v. Ramanathan Chettiar AIR 1933 Mad 466 would apply to all cases in which return of the summons is made Under Rule 17, Order 5. Rule 17 provides for affixiture both when the defendant refuses to accept service and also when he cannot be found, and Rule 19 provides that where a summons is returned Under Rule 17 the Court shall either declare that the summons has been duly served or order such service as it thinks fit. This has not been done in this case, and there is thus no real distinction between the present case and the case reported, in Azagappa Chetti v. Ramanathan Chettiar AIR 1933 Mad 466. Another point may also be mentioned in this connexion. The order relied upon as constituting res judicata was made on a petition presented subsequent to the present petition, and the principle of res judicata can hardly be applied with propriety to orders passed.' in subsequent proceedings. It would therefore follow that the plea of res judicata is really without substance, and that there is no bar in the way of the appellant by reason of the order in question which prevents him from objecting to the execution of the decree in O.S. No. 330 of 1911 on the score of limitation. The further question that arises is whether E.P. No. 104 of 1928 is maintainable. It is conceded, and the point is indeed abundantly clear, that if the attachment which was made absolute on 10th October 1923 was an attachment in execution of the decree in O.S. No. 330 of 1911 or must be deemed to be such an attachment, there can be no bar of limitation against the execution of the decree. In the case of attachments in execution of a decree when the attachment is of another decree the provisions of Order 21, Rule 53, Sub-rule (3), Civil P.C., clearly show that the holder of the decree sought to be executed can always proceed to execute the attached decree just as the holder of that decree.
7. It is desirable to state as far as possible in the words of the Code what the result of an attachment of a decree in execution is : Where the property to be attached is a decree for payment of money, as in this case, the attachment shall be made if the decree sought to be attached was one passed by another Court by the issue of a notice by the Court which passed the decree sought to be executed requesting the other Court to stay the execution of its decree unless and until the Court which passed the decree sought to be executed cancels the notice, -or the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own. decree. Sub-rules 2 and 3 of Order 21, Rule 53 define the rights of the attaching decree-holder. Sub-rule 2 states that on the application of the creditor who has attached the decree or his judgment-debtor, the Court shall proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. Sub-rule 3 provides that the holder of a decree sought to be executed by the attachment of another decree shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. It is not denied that the attached decree in the present case is one the execution of which is not barred by limitation.
8. In fact the decree to be executed in O.S. No. 153 of 1910 is the appellate decree dated 26th April 1928, and the application E.P. No. 104 of 1928 is certainly not barred by limitation. The real objection is, not that the execution of the decree in O.S. No. 153 of 1910 is barred by limitation, but that the respondents are not entitled to execute their own decree by merely filing an application to execute the attached decree. In other words it is contended that in the absence of a separate execution application for execution of their own decree in O.S. No. 330 of 1911 they have no locus standi to apply for execution of the attached decree, and further, that, even assuming that the application to execute the attached decree can be deemed to be an application to execute their own decree, such an application to execute their own decree is barred by limitation as it was presented more than three years after the date of the decree, no proceedings in execution having been taken in the interval. The contention of the appellant rests on the assumption that the attachment of the decree in O.S. No. 153 of 1910 which was made absolute on 10th October 1923 was an attachment before judgment, and it is contended that an attachment before judgment does not become an attachment in execution unless there is a subsequent application, i. e., after the attachment and after judgment, to execute. The contention that there must be an application to execute the decree, before an attachment before judgment can become an attachment in execution derives considerable support from the Full Bench decision in Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924 Mad 494.
9. Though it would appear from certain observations , of Sir John Wallis, C.J. in Arunachalam Chetty v. Periyaswami Servai AIR 1921 Mad 163, another Full Bench case, that he was at first disposed to think that an attachment before judgment might be regarded as an attachment in execution of a decree in view of the fact that attachment is always the first step in execution and because in exceptional cases such a step is allowed to be taken without waiting for the decree, on second thoughts he was of opinion that such a construction was not admissible. In the later Full Bench decision in Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924 Mad 494 it was held! that an attachment before judgment becomes an attachment in execution when there has been a decree followed by an execution petition for the purpose of bringing the attached property to sale. That. case however dealt with attachment of property other than decree for money in which the procedure is not to sell after the attachment but to execute the decree itself, under the provisions of Order 21. Rule 53, Sub-rule 3. In Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924 Mad 494 Ramesam, J. was of opinion that the effect of Order 38, Rule 11, was that the attachment before judgment becomes an attachment in execution when it is definitely sought to be made available for execution and at p. 512 he mentions certain differences, not very vital, between an attachment before judgment and an attachment in execution and winds up the discussion with the following observations :
But do these differences make the attachment before judgment so entirely different in character from one after judgment that one can never pass into the other I am of opinion it is not ; in my view, the attachment before judgment and that after judgment are identical in their essential features. Each is effected by a prohibitory order. The purpose of both is the same. The consequences of both are the same. All alienations by the judgment-debtors are void against claims enforceable in pursuance of the attachment. Neither has got the character of a charge. It is thus seen that, so far as they vacate or affect rights, they are substantially identical in character.
10. In the recent case in Dalayya v. Sundara Narayana AIR 1936 Mad 91, a bench has observed:
As a question of principle, if an attachment before judgment can be treated as an attachment for purposes of execution at all, it is difficult to see what necessity there is for an order of Court. The more reasonable view seems to us to hold that from the' time the decree-holder applies for execution, he elects to avail himself of the attachment before judgment and from that moment the attachment before judgment becomes an attachment available for purposes of execution.
11. They quote in this connection the following observations of Coutts Trotter, J., in Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924 Mad 494:
The turning point comes in my opinion when the decree-holder by filing an execution petition has shown that he means to execute his decree; and I am myself unable to escape from what seems to me the logical conclusion, that, when he has elected to proceed in execution an attachment which he has obtained and on which he must necessarily base his petition and demand for sale becomes automatically an attachment in execution.
12. The ratio decidendi of the Full Bench case appears to be that there must be some unmistakable declaration of the decree-holder's intention to execute the decree, before the attachment before judgment can become an attachment in execution of the decree. No doubt in ordinary cases such an election or declaration of intention would be made by presenting an execution application. But it does not seem that in every case without exception it should be done in this manner and in no other. If intention to execute can be inferred from other circumstances, there can be no doubt in this case there was an intention to execute as is apparent from the fact that the respondents, impleaded themselves in the appeals pending in the High Court in connexion with O.S. No. 153 of 1910 and were appearing in those appeals till the very end. It would also seem that any earlier application to execute the decree in O.S. No. 330 of 1911 by proceeding against the attached decree in execution thereof would have been fruitless in view of the stay orders made by the High Court in appeal. The learned Subordinate Judge observes that when the attachment of the decree in O.S. No. 153 of 1910 was applied for, all the orders of the High Court in the appeals against the decree for stay of execution had been subsisting and that such stay orders of the High Court terminated only on the passing of the decree in the appeals in April 1928. It would therefore appear that any earlier application with this object in view would have been fruitless. As observed by their Lordships of the Judicial Committee in Bassu Kaur v. Dhum Singh (1889) 11 All 47 :
It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not.
13. After all, attachment before judgment is a proceeding in execution though before a decree is passed. As Order 38, Rule 5 itself says the attachment is made because the Court is satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove it from the local limits of the jurisdiction of the Court. Attachment therefore even before judgment is in a sense a step towards execution. It is a proceeding in execution though it is a proceeding before the decree is passed, and there is no reason why it should be treated very differently from an attachment in execution after the decree has been actually passed. The state of the authorities however is such that it is not possible to adopt or give effect to what might be called this prima facie view of the case, and the observations in the Full Bench case, Meyyappa Chettiar v. Chidambaram Chettiar AIR 1924 Mad 494, in particular make it impossible to say that the mere passing of a decree converts an attachment before judgment into an attachment in execution. Whether in this case the subsequent impleading of the respondents as parties in the appeals in the High Court can be regarded as a sufficient indication of their election or intention to execute the decree obtained by them is a question of some difficulty, and it would be desirable not to base a decision in these appeals on this somewhat uncertain ground.
14. The question however remains whether we are dealing in the present case with an attachment before judgment at all, and not with an attachment after judgment. The facts are, as already stated, as follows : The attachment was made long after even the final decree in the suit was passed. The final decree was passed in 1915, and there was no doubt at the time that the appellant's father was personally liable for any balance remaining due after the sale. No doubt no formal decree to this effect making him personally liable was drawn up at the time, and the final decree merely provided that the plaintiff should be at liberty to apply for a personal decree. Application for a personal decree was made in the form of an execution application. It was clear therefore that it was intended as an application in execution of the final decree, and the attachment was ordered on this application to execute the final decree. Even assuming that what styled an execution application was only an interlocutory application for the purpose of taking further proceedings in the suit itself, and not in execution, it remains a fact that the attachment though ordered before, was actually effected or made after, the personal decree was passed. The decree is dated 11th August 1923. Notice of attachment is dated 14th August 1923, and the attachment was not received by the Court to which it was issued till 17th August 1923. Finally the attachment itself was not made absolute till 10th October 1923, that is to say, long after the personal decree had been passed.
15. It is also seen that the notice of attachment that was actually issued, namely, Ex. C, recites that the application for attachment was made Under Section 273, Civil P.C. This section of the old Code corresponds to Order 21, Rule 53 of the present Code. It is thus clear from the notice of attachment sent to the Court which passed the decree that the application for attachment was made Under Order 21, Rule 53, that is to say, in execution, and as the notice itself was signed three days after the personal decree was passed, it is not an unfair inference nor an unreasonable conclusion to draw that when actually issuing the notice of attachment the Court intended it to be an attachment after judgment and not before judgment, or, in other words, to be an attachment in execution of the decree that had been passed three days before. In Muthiah Chetti v. Palaniappa Chetti AIR 1928 PC 139, their Lordships of the Judicial Committe observe :
In view of these provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could dispense with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.
16. In the present case the attachment was actually made and must be deemed to have been made only when the notice of attachment was received by the Court to which it was addressed, that is to say on 17th August 1923, and this was six days after the decree had been passed. In these circumstances it is impossible to hold that the attachment when made was an attachment made before judgment. Attachment actually made after judgment cannot be deemed in law to be made before judgment simply because it happens that the application for such attachment was made before the judgment was actually passed.] The legal effect of attachment comes into, being only when the attachment is actually made, and its nature is defined also by the time when it is made and not when it is ordered. The result is that when the attachment was actually made, or in other words when the decree of the other Court was made available for the purpose of satisfying the demands of the applicant applying for the attachment, a decree had already been passed and such attachment must be deemed to be an attachment in execution of the decree that was actually passed before it was made. This seems to be plain common sense and it is not easy to see why this commonsense view should not also be accepted as being correct in law. The law does not require any other interpretation to be put upon the facts of the case and there is really no authority which supports the view that an attachment actually made after judgment or decree must nevertheless be deemed to be an attachment made before judgment or decree.
17. It is clear that, if the attachment in the present case which was made absolute on 10th October 1923 was an attachment in execution of the personal decree passed on 11th August 1923 in O.S. No. 330 of 1911, the application to execute the attached decree is certainly maintainable under the provisions of Order 21, Rule 53, Sub-rule 3 which by operation of law makes the decree-holder in O.S. No. 330 of 1911 the representative of the decree-holder in O.S. No. 153 of 1910. Execution of the decree in O.S. No. 153 of 1910 is obviously not barred and it is not contended that it is barred. It follows from what has been said that the application to execute the decree in O.S. No. 153 of 1910 was maintainable and that it was also not barred by limitation.. The appeals by the appellant, namely CM.A. Nos. 344 of 1931 and 394 of 1932 are therefore dismissed with costs ; in view of the memorandum of cross-objections filed by the respondents in C.M.A. No. 344 of 1931 the orders of the lower Court in E.P. No. 104 of 1928 and E.A. No. 436 of 1929 must be set aside and those petitions must be remanded to the lower Court for fresh disposal in the light of the observations contained in this judgment, that is to say, by treating them as maintainable and as being not barred by limitation. In C.M.A. No. 234 of 1932 there is no need to pass separate orders, for that arises out of an attempt merely to treat E.P. No. 104 of 1928 as pending, though it had boon dismissed on 17th March 1931.
18. C.M.A. No. 234 of 1932 will simply be dismissed.
19. I agree.