1. This is an appeal against the order of the Subordinate Judge of Tuticorin in E.P. No. 159 of 1926 in O.S. No. 92 of 1916. This execution petition prayed that the immovable properties of respondents 1 to 10 should be attached and sold and it was allowed. The appellants are respondents 7 to 10 in the execution petition and defendants 7 to 10 in the suit. The respondent is the assignee decree-holder.
2. The history of the execution proceedings which led up to this order is somewhat complicated. The main points are as follows:
The respondent's predecessor-in-title had instituted a suit O.S. No. 92 of 1916 on a mortgage. On 29th September 1917 a compromise decree between the parties was passed. A final decree was passed on 14th September 1918 and a personal decree on 23rd October 1919. By the terms of the razinama decree out of Rs. 13,200 settled as the amount due from the date of the plaint with subsequent interest and costs, Rs. 2,100 was to be remitted by the plaintiff in favour of the defendants and in respect of the balance of Rs. 11,000, Rs. 7,100 was to bear interest at 1 1/4 per cent per mensem from the date of the decree and the said interest was to be paid in two instalments, one of Rs. 3,550 on 14th Margali 1093 and another of Rs. 3,550 on 11th Panguni of the same year, and out of the balance of Rs, 4,000 which was not to carry interest, Rs. 500 was to be. paid on 16th Panguni 1093 and another Rs. 500 six months afterwards and so on up to 16th Perattasi 1097. The final clause is:If the above is not paid in any particular instalment, the whole amount including Rs. 2,100 agreed to be remitted shall' be paid with 1 1/4 per cent per mensem from the date of the default from out of the mortgaged properties and from other properties belonging to the defendants and personally.
3. Default was made, but when the final decree was passed on 14th September 1918 interest was apparently by in advertance omitted. The assignee decree-holder put in an application, E.A. No. 185 of 1922, to have the petition and the personal decree amended by adding interest; but the petition was dismissed by consent on the following terms:
We agree to the present petition being dismissed. But the petitioner reserves his right of saying that the defendants are debarred from questioning their liability to pay interest in the execration petition itself. Subject to such defences defendants may take them (sic). Defendant 7 will then be precluded from contending that the question of interest ought to have been decided in the present petition.
4. This petition is signed by the pleader for the decree-holder and by the pleader for defendant 7; and the final order was dismissed subject to that liberty.' After the personal decree had been obtained on 23rd October 1919 various execution proceedings were taken and in the course of one of them, E.P. 98 of 1922, the immovable properties of the appellants were sold on 27th April 1923 and the sale was confirmed on 28th July 1923. Then the present petition E.P. No. 159 of 1926 was put in on 4th October 1926 for attachment. The Judgment-debtors and their representatives, respondents 1 to 10 in the petition, objected that, as there was no provision for interest in the personal decree, the amount had been fully satisfied by payments and Court sale. The order of the Subordinate Judge runs as follows:
This is a petition for attachment in execution of a personal decree passed against those defendants. The objection to execution is that there is no provision for subsequent interest in the personal decree and that the amount covered by it has been satisfied by payment and Court sale. The personal decree no doubt is silent about subsequent interest but the preliminary decree provides for subsequent interest. In the subsequent execution applications, the petitioner has claimed interest at this rate to which these defendants have taken no objection. The defendants are, therefore, precluded now from contesting their liability to pay interest. The previous orders in execution E.P. 74 of 1922 and E.P. No. 98 of 1922, operate as res judicata. The petitioner is, therefore, entitled to the amount claimed. Attach 2nd September 1927.
5. It will be seen therefore that this order dismissed the claim as res judicata owing to the orders passed in E.P. Nos. 74 of 1922 and 98 of 1922. We have therefore to consider whether the orders in these two execution petitions operate as res judicata in the case of the present execution petition.
6. E.P. No. 74 of 1922 was put in on 2nd September 1922 for the arrest of defendants 6 and 7, The entries in the B diary are as follows:
4th September 1922. Notice to defendants 6 and 7.
13th September 1922. Notice to defendant 7 served, absent. Notice to defendant 6 affixed as refused. Absent. Arrest 13th October 1922.
13th October 1922. Defendant 6 was not found. Defendant 7 was arrested and sent to jail on 6th October 1922. Adjourned to 13th December 1922.
13th December 1922. Jail warrant not returned. Adjourned to 10th February 1923.
10th February 1923. Jail warrant not returned. Adjourned to 19th March 1923.
19th March 1923. Jail warrant not returned. Adjourned to 17th July 1923.
14th April 1923. Judgment-debtor was released from jail on 5th April 1923.
7. Defendant 7 is one of the present appellants. It will be seen that he was for a considerable time in jail under this execution petition. He did not object during that period that the amount mentioned in the execution petition was excessive.
8. The next execution petition mentioned by the Subordinate Judge is E.P. No. 98 of 1922. This was put in on 18th October 1922 for attachment of immovables and for sale. On 4th January 1923 immovable properties were attached and sale papers were called for on 19th January 1923 and filed on 1st February 1923. The assignee plaintiff put in a petition for leave to bid at the sale to which defendant 6 put in a counter. This has been marked as Ex. S in A.S. 356 of 1926, In this counter defendant 6 raises two pleas : (1) that the suit property was dedicated to charity and could not be attached and (2) that nothing remained due under the final decree to attach, since the total amount had been satisfied by the previous sale. The order of Court on this was passed on 20th April 1923 as follows:
The objections relate to the proclamation. They should have been raised before the proclamation was settled. It is too late now to raise them. Overruled. Permitted to bid only and not set off as a petition is filed for rateable distribution.
9. In dealing with this order, we have to consider whether the matter of anything being due under the decree was raised and decided, in which case of course it would clearly be res judicata in the present petition. It is quite true that Ex. S is merely headed ' O.S. No. 92 of 1916. Tuticorin Sub-Court. Counter statement by defendant 6 ' and it does not explicitly state that it is a counter-to the application of the plaintiff assignee to 'bid at the sale but we must take it from the circumstances of the case that it is a counter to this petition. It is also true that it does not directly attack the right of the plaintiff assignee to bid and that the relief sought is that the Court should cancel the attachment proceedings and dismiss the execution petition. As we read it, defendant 6, instead of directly attacking the plaintiff assignee's right to bid, took wider grounds which attacked the right of any one to bid. These grounds were: (1) that the property was not attachable at all under the decree, being trust property and (2) that the decree had already been satisfied. It is argued that we must look at the substance of this counter petition and read the order in that light as one passed on the merits of the execution petition itself. The order, however, is written on the petition for leave to bid and in its final terms gives such leave. An order giving or refusing leave to bid is only a ministerial order and not appealable : vide Ko Tha Hnyin v. Ma Hnyin  38 Cal. 717. To test the argument that this was a decision in the execution petition itself and not merely on the application to bid we have only to ask what would have happened if an appeal had been preferred against this order? There is no doubt 'that such appeal would have been opposed on the ground that no appeal lay land we have little doubt that this contention would have been upheld. We must therefore find that the point as to whether anything was still due under the decree was not raised and decided by an appealable or judicial order and that the order passed would not therefore operate as res judicata.
10. The next point for consideration is whether the order for sale and the sale in the same execution petition make the objection as to the correctness of the amount for which the property was proclaimed to be sold by implication res judicata. There is direct authority on this particular point in Kalyan Singh v. Jagan Prasad  32 All. 589 which was followed in Sheo Mangal v. Hulsa : AIR1922All413 and approved of in Prithin Mahton v. Jamshed Khan A.I.R. 1922 Pat. 289 where it was held that, where a property is liable for attachment and sale and is sold an objection can be raised in subsequent execution proceedings that the amount of the decree debt for which the attachment and sale was held was not correct, It is argued before us for the appellants. that constructive res judicata has no application to execution proceedings and is not governed by the explanation to Section 11, Civil P.C. though implied res judicata has been recognized : vide Nityananda Gantayet v. Gajapati Vasudeva  24 Mad. 681. On the other side it is argued that certain decisions in Madras, though they do not directly deal with the present point, show that, when an execution petition is not opposed and when proclamation is issued or sale is held, it becomes res judicata on the questions (1) that the petitioner has a right to execute the decree, (2) that it is an executable decree, (3) that it is not barred by limitation and (4) that the judgment-debtor is liable to satisfy the decree. These propositions have been laid down in Lakshmanan Chetty v. Palaniappa Chetty : AIR1928Mad1052 . As regards No. 3 it is well settled by authority. Turning to the earlier Madras cases, it was held in Periakaruppan Chetty v. Chidambara Thambiran  2 M.W.N. 64 that an ex parte order in execution will operate as res judicata when the judgment-debtor allows an order for execution to be passed against him at one stage of the proceedings when he had an opportunity to test the validity of that order. Subbiah Naiker v. Ramanathan Chettiar  37 Mad. 462 was a case of limitation set up in a subsequent execution petition. As stated above this point is well-settled. Govinda Menon v. Krishna Mannadiar A.I.R. 1923 Mad. 649 is an important decision. In that case the contention was that there was no final decree in existence to execute and the Court held that the decisions regarding limitation were applicable mutatis mutandis and applicable to other objections, even though, as in the case before us, the items sought to be proceeded against wore different from those proceeded against in the previous execution petition. There is a general remark also in Subramania Ayyar v. Swaminatha Chettiar : AIR1928Mad746 . Although the particular point was decided in Kalyan Singh v. Iagan Prasad, Sheo Mangal v. Hulsa and Prithi Wahton v. Jamshed Khan the actual point before us had not been settled in Madras. There does not seem, however, to be anything in the Madras decisions which conflicts with Kalyan Singh v. Jagan Prasad. Taking the four points which have been laid down as becoming res judicata in : AIR1928Mad1052 , none of them is involved in this case. The first is that the petitioner has a right to execute the decree. That is not disputed in the sense in which it is laid down, i.e., that he had a right to execute it during the previous execution proceedings. The second that it is an executable decree is also not denied in the sense that it was executable daring the previous proceedings. The third point about limitation, though settled by ample authority, does not arise. The fourth point that the judgment debtor is liable to satisfy the decree is also not disputed in the sense that he was liable to satisfy the decree as it stood when the previous execution proceedings were taken. What is really implied in holding that the objection that the final decree does not award interest and that there is therefore nothing due under it to be res judicata, amounts really to holding that the figure of the debt entered in the proclamation of sale held previously has superseded the decree itself.
11. If the explanation to Section 11, Civil P.C., cannot be invoked we know of nothing to support such a view. Defendants 6 and 7 ware liable to arrest during the previous execution proceedings, and the property then attached and sold was liable to be attached and sold. That the appellants did not then object that the amount for which execution was taken out was in excess of the decree itself does not, we consider, bar them from raising this plea in subsequent execution proceedings. To hold otherwise would imply that the decree is itself superseded by orders in execution which allow more than what the decree granted. We consider therefore that the decision of the Subordinate Judge that the objection is barred by res judicata is unsustainable.
12. It has been argued before us that the execution application also includes the consent decree and that there can be no objection to the recovery of interest as it is provided for in that decree. To this the objection of the appellant is that after a final decree is passed the first decree is of no force as it supersedes all prior rights. As the Subordinate Judge has confined his decision to the question of res judicata, we think that this question should be raised before him.
13. We would reverse the decree of the lower Court in so far as it holds that the present objection is barred by res judicata owing to the orders in E.P. No. 74 of 1922 and 98 of 1922 and refer the petition back for disposal according to law after considering all the contentions raised by both sides, Costs of this appeal will abide the result.