Kuppuswami Ayyar, J.
1. The appeal arises out of proceedings in execution of the decree in O.S. NO. 236 of 1937 on the file of the District Munsif of Ambasamudram. It is a simple money decree passed in a suit for recovery of money due on a promissory note. The first execution petition was filed in 1939 for attachment of the immovable properties of the appellant. On a petition filed by the judgment-debtor the attachment was cancelled as the will under which the judgment-debtor derived his title to the properties did not disclose any such right as was specified in the execution petition. The attachment, therefore, was withdrawn. There was an observation that the decree-holder will have a right to attach and proceed against such interest as the judgment-debtor had in these properties under the terms of Ex. A. That was only an observation. Nothing further was done on that execution petition, as the next petition was filed in 1941 out of the proceedings in which this appeal arises. The prayer was for attachment and sale of the defendant's right in the immovables mentioned in the petition, and the right was described as being the right, title and interest possessed by the judgment-debtor under the terms of the will. The attachment was ordered on 16th October. Some of the properties were attached and items 53 and 97 to 108 were not attached. The rest were attached on 4th November 1941, 5th November 1941 and 6th November 1941. The sale papers and revenue extracts were called for and time was extended twice, and it was finally posted to 15th January 1942 for filing the papers. After the sale papers were returned, attachments over items 20, 35, 36, 38, 40 to 42, 45, 57, 91, 109 to 111, 114, 115, 117, 178, 183, 196, 198 were raised, and notice Under Order 21, Rule 66 was ordered. The defendant was not served, and the notice was affixed as the defendant was reported to have gone to Madura. The fresh notice was also affixed, as it was returned that he had gone to Nagercoil, and substituted service was ordered, and it was served by affixture at the last known place of residence.
2. Then, on 2nd June 1942, the date fixed for settling of the sale proclamation, the defendant was absent and the properties were directed to be sold on 24th July 1942. The proclamation was settled that day. Upset price was fixed after considering the value given by the plaintiff and that given by the amin. On 23rd July 1942 the judgment-debtor filed an application, E.A. NO. 518 of 1942, for raising the attachment on the ground that the interest possessed by the judgment-debtor cannot be sold in execution of the decree as under the will he had no powers of alienation. The decree-holder opposed the application and contended that the petitioner was barred by res judicata from setting up this defence by reason of the fact that in the previous application it had been decided that the interest could be sold and also on the ground that he failed to take the necessary objections at the time when the sale proclamation was settled in spite of the fact that he had notice of it. The first Court accepting the contentions dismissed the petition. The learned Subordinate Judge of Tinnevelly on appeal held that the petitioner not having objected to it at the time of settling of the proclamation was barred from raising the plea relying upon the decision of this Court in Maharajah of Cochin v. Thupran A.I.R. 1941 Mad. 861. Hence this appeal.
3. The only two points for consideration, therefore, are (1) whether the petitioner is barred by res judicata from pleading that the property is not liable to be sold by reason of the order in E.A. No. 465 of 1940, and (2) whether he is estopped from raising this contention by reason of the order dated 2nd June 1942 in E.A. No. 435 of 1941.
4. Point 1.-- The first Court held that in view of an observation in the order dated 18th September 1940 in E.A. No. 456 of 1940 the judgment-debtor is estopped from setting up a plea that the interest which he had under the will is not saleable. In that order, the attachment already effected was withdrawn, but there was the following observation:
It is proper to observe that the decree-holder will have the right to attach and proceed against the interest of the judgment-debtor in these properties such rights as are provided for in Ex. A.
5. The appellate Court has not discussed how far this order would operate as res judicata, but seeing that the order in that petition cancelled the attachment, the observations are only by way of obiter dicta and cannot be taken to be a decision on the point. The District Munsif cancelled the attachment in toto. The observation regarding attachment of such rights as he possessed, cannot be taken to amount to a definite finding or decision that such rights as he had were attachable. The necessity for deciding it would come only after there is a prayer for attaching that right. So that order cannot operate as res judicata.
6. The necessity for deciding this question arose only when E.P. No. 435 of 1941 was filed. The attachment was ordered after calling upon the decree-holder to produce the copy of the will, and in the endorsement representing the E.P., it was stated that the judgment-debtor has a life-interest in these properties and that such a right could be sold in execution, vide endorsement of return dated 8th October 1941. Subsequently, the order directing the attachment of the properties was passed on 16th October 1941 and after attachment the sale papers were filed. Notice Under Order 21, Rule 66 was issued thrice and the last time it was served by substituted service. The learned Subordinate Judge observes that in the circumstances of the case it was difficult to believe that the judgment-debtor had no knowledge of the execution proceedings at the time of the settlement of the proclamation of sale and that this case had not been reasonably made out. He therefore found that the judgment-debtor was aware of the attachment and had notice of the date fixed for the settlement of the proclamation of sale. This is a finding of fact minding upon this Court.
7. Then the next point for consideration is whether not having appeared in Court after he was made aware of the execution proceedings and after he was validly served with notice Under Order 21, Rule 66 it would be open to him to raise the objection that the properties could not be sold. Whatever might be said, with regard to the order directing attachment which was passed without notice the order passed on 2nd June 1942 directing the sale of the properties clearly amounts to a finding that the properties were liable to be sold and could be sold in execution of the decree. That order therefore might operate as res judicata in which case the proper course for the judgment-debtor would be to file an appeal against the order directing the sale. As pointed out in Maharajah of Cochin v. Thupran A.I.R. 1941 Mad. 861, some of the matters decided by the Court in approving the sale proclamation are, of course, administrative only, but the question as to whether the decision of the Court would be final or not will depend upon the nature of the decision. The decision alleged to have been made in this case, the correctness of which is questioned, is the decision on the point whether the properties could be sold or not. The Court had necessarily to decide whether the property could be sold or not before it directs the sale of the properties. Though the question could be decided before an order for attachment could be made, still it must necessarily be decided at the time when the order directing the sale is passed. In this case, the will had been produced and the decree-holder's contention was that the right under the will was capable of being attached and sold, as is clear from the endorsement on the execution petition made at the time of its representation and referred to above.
8. It is contended that if the petitioner had knowledge of the execution proceedings and also had notice Under Order 21, Rule 66 as was found by the learned Subordinate Judge, then it was his duty to have come and opposed the claim of the decree-holder to have an order directing the sale of the items passed. He did not do so, nor did he take the matter in appeal. That order, therefore, it is contended, will operate as res judicata. For the appellant, it is contended on the strength of the decision of the Full Bench in Chidambaram Chetti v. Theivani Ammal A.I.R. 1924 Mad. 1 that the fact that the appellant did not attend the Court at the hearing of the application to settle the terms of the sale proclamation could not estop him from disputing the liability of the property for being attached. No doubt in that case the objection raised by the judgment-debtor as regards the liability! of the property to be attached was made after notice was issued Under Order 21, Rule 66 and he was absent on the date of the hearing. But then as pointed out by a Bench of this Court in Kaliaperumal Naidu v. Subramaniam Chettiar : AIR1928Mad203 the question turns ion the particular circumstances of each case, land, this was emphasized in Chidambaram Chetti v. Theivani Ammal A.I.R. 1924 Mad. 1. It was also pointed out in that case that a material consideration was whether clear notice that the validity of the execution was in question had been given to a party who was advised that the terms of the proclamation were about to be settled, and it was found that the party had no notice of attachment. Oldfield. J. remarked that failure to raise the question of ownership in the proclamation proceeding's did not constitute res judicata. Schwabe C.J. also observed that the decision in that case was confined to the particular facts of the case. In this case we have the definite finding of the lower appellate Court that the appellant, the judgment-debtor, was aware of the attachment and had notice of the date fixed for the settlement of the proclamation. In Adilakshmi Ammal v. Srinivasa Goundan : AIR1944Mad193 also Horwill J. pointed out that the learned Judges in the Full Bench decision in Chidambaram Chetti v. Theivani Ammal A.I.R. 1924 Mad. 1 were at pains to point out that their decision was limited to the facts of the case. Now, in this case, there is also the important fact, namely, that even in the prior execution petition, when the properties were sought to be sold the petitioner raised the objection about the attach, merit and on his application the attachment was cancelled with the observation that the right, title and interest which the judgment-debtor had under the will might be proceeded against by way of attachment.
9. Can it be said in this case that when I the appellant received notice Under Order 21, Rule 66, ho had any information as to what the properties were that were brought for sale? I have sent for the notice and I find the list of properties is not given in it. All that is stated therein is that a date had been fixed for settling the terms of the proclamation. The case is therefore on all fours with the case of the Full Bench in Chidambaram Chetti v. Theivani Ammal A.I.R. 1924 Mad. 1 and following the decision in that case I find that the appellant is not barred by res judicata from raising the plea that the properties are not liable to be sold merely by reason of the fact that ho failed to be present on the date of hearing fixed for settling the proclamation. The appeal is allowed. The order of the lower appellate Court is set aside and the petition is remanded to the first Court for considering the question as to whether the properties are liable to be sold in execution or not and proceed with the petition. The costs of this appeal as also the costs of the lower appellate Court will follow and abide the final result of the execution petition.