1. The respondent in this second appeal had filed a suit for specific performance against three defendants with regard to the execution to him of a sale-deed. A compromise decree was passed. The main terms of the decree were that defendants 1 and 3 should execute a sale-deed in favour of the plaintiff, and the said document be filed for registration on 30th May 1917, at the expense of the defendants, who should get it registered, that the plaintiff do pay to the defendants Rupees 4,570-8-0 settled to be paid before the Registrar at the time of registration that the defendants do receive the said sum, that a certain kadapa should be cancelled, and the registered sale-deeds executed in favour of the husband of defendant 1, and that this kadapa and certain other documents should be handed over to the plaintiff, that as defendant 2 did not join with defendants 1 and 3 in the execution of this document and had become ex parts, and an ex parte decree had been passed against him, in his place the document should be signed by the Court and registered
in case the sale-deed cannot be executed and filed for the purpose of registration in due time, thereupon an execution application shall be filed in Court, and sale deed shall be caused to be executed
that the plaintiff should be entitled to have the costs of such proceedings deducted from the sale amount, that the plaintiff should pay Rs. 200 in respect of past kists due to defendants within two months separately to defendants 1 and 3, that the defendants should give up all the rest of the kist, that each party should bear their own costs, that from Fasli 1326 (1916-17) the plaintiff should enjoy the suit land with all absolute rights, and that, if the plaintiff cannot pay the amount before the Registrar on the aforesaid due date, that is, on 30th May 1917, the defendants should recover the amount thence forward with interest at 12 annas per cent per month till the amount is paid.
2. As defendants 1 and 3 were quarrelling among themselves as regards their shares of the purchase money, the sale-deed was not executed or got ready by the defendants on 30th May 1917, and the plaintiff having got into possession of the land did not trouble himself to execute the decree, and get the sale-deed executed by Court. On the other hand the defendants filed E.P. No. 49 of 1917 in the Temporary Sub-Court of Cocanada, and after notice the plaintiff appeared by a vakil and put in a counter on 19th October 1917, in which he said he was ready to pay the money as per the decree, but that defendants 1 and 3 were attempting to receive all the money from him after themselves executing the sale-deed without defendant 2. As the sale deed was not registered within the time allowed the proceedings were shopped. Next came an E.P. on 5th September 1923, as a result of which a sale deed was executed on 17th December 1924. Another E.P. No 5 of 1924, was put in on 10th January 1924, but apparently dismissed without orders. The present E P. No. 20 of 1926, was put in on 18th January 1926 Defendant 4, the present appellant, and defendant 2 filed this E.P. in which they asked the Court to issue notice to the plaintiff of the proceedings and also direct him to deposit into Court the amount due to defendants 2 and 4 in respect of the sale-deed executed by them in favour of the plaintiff, and deliver the sale-deed to the plaintiff. In this petition they claimed interest from 30th May 1917, till 10th January 1924. The plaintiff was absent and the Court made an order that he should deposit Rupees 7,489-11-6 in ten days and take delivery of the sale-dead. In default the property in the sale-deed would be put up for sale and the amount realised. This amount includes the interest, but not the costs claimed in the petition. The plaintiff paid about Rs. 2,000 under this decree, but objected to paying interest from 30th May 1917.
3. It was urged before the learned Subordinate Judge that the matter was res judicata owing to the order in E.P. No. 5 of 1924. The learned Subordinate Judge found against this contention. He held however that under the decree the interest claimed was due. The District Judge also held that the matter was not res judicata, but that interest was not due under the decree as from 30th May 1917, so he awarded only interest from 16th February 1924, when the plaintiff-respondent had notice that the deed has been executed. Defendant 4 in E.P. No. 20 of 1926 ha? appealed against this order. The first question is from what date the interest claimed as under the compromise decree is due. I agree with the learned District Judge that the reference to interest in the decree contemplates it as due from and after the date of the execution of the document. The words
it the plaintiff cannot pay the amount before the Registrar at his office on the aforesaid due date,
cannot possibly mean, in my opinion, 'if he cannot pay the amount because the defendants have not executed the document.' Under such a construction the defendants would be entitled to recover the whole amount of the purchase money and also interest thereon without executing any sale-deed. That is clearly an impossible construction. The trial Court says that the plaintiff
did not deposit the money into Court even then (on 19th October 1917, when he put his counter in E.P. No. 49 of 1917) or after he was personally served with notice in E.P. No. 5 of 1924 put in by the same defendants. On that petition the learned Subordinate Judge of Cocanada even asked him to deposit the money into Court in ten days. He did not do so. He must therefore be deemed to have been unable to deposit the money on 30th May 1917 as mentioned in the decree.
4. I agree with the lower appellate Court that there is no warrant for the conclusion that the plaintiff was unable to deposit the money on 30th May 1917. Then the trial Court says:
Equity also demands that plaintiff should pay interest, he being in possession of the land and the defendants not being paid the consideration for the sale.
5. The learned District Judge does not deal with this plea of equity. It is argued for the respondent that as the matter is one of specific contract between the parties under the compromise decree there is no question of equity. That would be the case if the point was specifically provided for under the contract. But what appears to have happened is that the contracting parties never contemplated that the plaintiff would not proceed to take out execution of the compromise decree if defendants 1 and 3 defaulted in executing the sale-deed. The condition under the decree is very stringent that in case the sale-deed cannot be executed execution application shall be filed in Court, and the sale-deed shall be executed. In my view what has actually occurred is what neither side contemplated nor provided for and the principle of equity would therefore be applicable. There is a clear authority that it should be applied in such cases as these where the vendee is in possession of the property: vide Ratnalal Chunilal v. Municipal Commissioner, Bombay AIR 1918 PC 129 and A. Tomlinson v. W.F. Harding A.I.R. 1930 Lah. 131. I would therefore allow the claim for interest from 30th May 1917, as the plaintiff was in possession of the property.
6. Although this renders it not necessary to go into the question of res judicata I will say a few words about this. The lower appellate Court has stated quite clearly in this matter that the notice did not convey information that the execution application contained a claim for interest from 30th May 1917 for the sum under controversy. It was attempted to be argued that no notice under Order 21, Rule 22 was necessary, because there had been a previous E.P., viz., E.P. No. 5 of 1924. But as no order was passed against the plaintiff in this E.P., notice has to issue. A notice simply calling on the plaintiff to show cause why the decree should not be executed, without further details would comply with the requirements of the section, and when the learned District Judge says as a fact that the notice did not convey information that the execution petition claimed interest from 30th May 1917, it must be taken to be a fact. Is has not been stated in the memorandum of grounds in this second appeal that this is a misstatement of fact. Thereupon on the first ground on which the learned District Judge has negatived the plea of res judicata he is, I think, correct. In the Full Bench case in Chidambaram Chetty v. Theivanai Ammal AIR 1924 Mad 1 it was held by their Lordships that want of notice renders a point decided in the proceedings of an execution petition in the absence of the judgment debtor not res judicata and the learned Judges referred to Subramania Ayyar v. Raja Rajeswaru Dorai (1917) 40 Mad 1016. and 1026 Ramesam, J., says that he entirely agrees with the remark made by Seshagiri Ayyar, J., to this effect:
One principle seems to be clear, and that is, that the party who is sought to be affected by the bar of res judicata should have an opportunity of putting forward his contention against such a decision.
7. In the same passage the learned Judge repels the argument that in the course of the same execution application an order made at one stage of it would be res judicata at its further stage and says:
The principle of constructive res judicata should be very cautiously applied to execution application.
8. It has been argued for the appellant that this last opinion has been overruled by the decision of the Privy Council in Hook v. Administrator-General of Bengal AIR 1921 PC 11. In Gadigappa v. Shiddappa AIR 1924 Bom. 495 it is certainly stated that this opinion is overruled by that case. But it has been pointed out to me that Hook v. Administrator-General of Bengal AIR 1921 PC 11 referred to decisions given at different stages in an administration suit. Seshagiri Ayyar J.'s dictum in the above case rests on his argument that execution can be taken piecemeal. This differentiates execution proceedings from a suit and I am not convinced that Hook v. Administrator-General of Bengal AIR 1921 PC 11 has already overruled his view. At any rate, with regard to the first point no authority has been quoted to me overruling one of the essential elements of justice, that if a Court decides against a person in his absence a matter of which he had not been given notice he cannot be bound by such decision. On this short ground therefore both Courts are, I consider, right as regards the question of res judicata. The second reason given by the learned District Judge is that the dismissal of the application had the effect of vacating the prior order passed on the same. This is perhaps doubtful looking to Periakaruppan Chetty v. Chidambaram Thambiran (1916) 33 IC 443. One other matter I feel bound to mention in connexion with the recent decision of this Court reported in Ulganatha v. Algappa : AIR1929Mad903 , in which I delivered the judgment. We followed in that case Kalyan Singh v. Jagan Prasad (1915)37 All 589. There was one peculiar feature in that case that the objection to the amount had been actually raised by the judgment-debtor and decided by the Court but on an objection raised to grant leave to bid at the sale. We therefore held that the point as to whether anything was still due under the decree was not raised and decided in any judicial or appealable order and hence that the order passed was not operative as res judicata. The remarks at p. 904, right hand column, were made in discussing the order made, on that application. I said:
In dealings 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.
9. These remarks must be read in their context. Later on I have mentioned four matters which have been held as res judicata, after service of notice on the judgment debtor. The correctness of the amount of the decree is not one. We held that the mere fact that the judgment-debtor did not at one stage of execution object that the amount for which execution was taken as stated in the sale proclamation was in excess of the decree itself does not bar him from raising the plea in subsequent execution proceedings. I have not been convinced that our view is wrong nor that Kalyan Singh v. Jagan Prasad (1915)37 All 589. has been overruled. It was sought to show that the latter case had not been followed in other cases in Allahabad. Ghulam Mahomed Khan v. Narain Das (1901) AW N 32 was a case decided many years before Kalyan Singh v. Jagan Prasad (1915)37 All 589. In Phul Chand v. Kanhaiya Lal AIR 1922 All 247 the question was not what amount was due under the decree but with regard to the parties from whom it was due. The learned Judges differed as regards res judicata. In Kapur Chand v. Kanhaiya Lal AIR 1924 All 34 in which the matter was referred to a third Judge, no reference was made to Kalyan Singh v. Jagan Prasad (1915)37 All 589. It may be mentioned that in Kalayan Singh v. Jagan Prasad (1915) 37 All 589 the fact that the judgment-debtor had from time to time made certain payments as in the present case under the execution petition was held not to prevent him from taking exception to the total amount claimed under the decree.
10. As I have pointed out in Ulaganatha v. Alagappa : AIR1929Mad903 , one has to note what are the exact things which have been held to be res judicata. Omission to take exception to the amount erroneously set forth in an application for execution of a decree was the point with which Kalyan Singh v. Jagan Prasad (1915) 37 All 589 was concerned, and it is that with which the present case is concerned. Dip Prakash v. Bhora Dwarka Prasad : AIR1926All71 was on a matter which had been expressly brought in the execution petition, and so far from dissenting from Kalyan Singh v. Jagan Prasad (1915)37 All 589 Daniel, J., expressed the opinion that the rulings on the matter of res judicata were not entirely consistent and that he expressed no opinion as to the correctness of that decision. Both Kalyan Singh v. Jagan Prasad (1915)37 All 589 and Budan v. Ramachandra (1887) 11 Bom. 537 are cases in which a decree had been extended beyond the real meaning of its terms without any contest before the Court in execution proceedings. Ram Kripal v. Rup Kuari (1886) 6 All 269 which is relied on to prove res judicata, was one where the scope of the decree was decided in execution proceedings after contest, and so the matter became res judicata, whether the decision was a right interpretation of the decree or not. I have only mentioned this matter because I consider the judgment in Ulaganatha v. Alagappa : AIR1929Mad903 is clear on the points we decided, and I cannot see that there are remarks in it which can be taken as opposed to Kalyan Singh v. Jagan Prasad (1915) 37 All 589 which we followed. In the result the appeal is allowed and the decree of the first Court will be restored with costs throughout.