1. In Original Suit No. 346 of 1904 the present appellant obtained a decree-against one Singaravelu Pillai who was the first defendant in the suit and died after judgment. His minor son, who was second defendant in the suit, was first represented by the present respondent who is first defendant's an divided brother, as his guardian ad litem. That decree was attempted to be executed in E.P.R. No. 883 of 1917 and, on the 6th of March 1918, it was held by the district Munsif of Kumbakonam in execution that the execution petition was barred by limitation and it was dismissed. While that execution petition Was pending the third defendant, the respondent in these proceedings, who was made a party to the execution application as one of the legal representatives of the first defendant, came forward with an application, E.A. No. 305 of 1918, to set aside the order making him a legal representative of the deceased first defendant and, at the same time, asking that the attachment of a portion of the property should be released as it belonged to him under a partition-deed. That petition was not enquired into, but when the execution petition wag dismissed on the 6th of March 1918, it also was dismissed as unnecessary. There was an appeal by the decree-holder against the District Munsif's order dismissing the execution petition and in those proceedings the second defendant was represented by his mother as guardian ad litem. As a result of that appeal, the Subordinate Judge set aside the District Munsif's order and in second appeal the High Court confirmed the judgment of the lower Appellate Court. The respondent, the third defendant, then applied for review of the order dismissing this petition; but the District Munsif held that it was unnecessary to review his previous order which was consequential on the order passed on' the execution petition and as the respondent had put in a separate petition for the release of his property from attachment, he recorded the application for review.
2. Now, it is contended that the respondent's claim to have a portion of the property attached released, as being his private property and so not liable to attachment, is barred by res judicata in consequence of his petition E.A. No. 305 having been finally dismissed. Secondly, it is contended that as he refused service of notice of the execution petition and as attachment was ordered and he did not get the ex parte order set aside or appeal against the Subordinate Judge's order restoring the execution petition which had been dismissed fay the District Munsif, he is now debarred from raising any objection to the attachment of the property.
3. The dismissal of the respondent's petition E.A. No. 305 of 1918 was stated to be for the reason that it was unnecessary owing to the execution petition' having been dismissed. There was at that time no adjudication upon the merits of the application and there has never been any hearing and final decision by the Executing Court upon the issue between the appellant and the respondent, whether the property attached belonged to the deceased first defendant or to the third defendant in his individual right. This being so, the principle of res judicata arising out of Section 11, Civil Procedure Code, will not operate to prevent the respondent from raising this question in the present proceedings.
4. The fact that there was an ex parte order against him for execution, of the decree will not make him any more bound as regards his present claim when the Executing Court not only did not decide the point now at issue, but even declined to investigate the matter on the ground that it was unnecessary.
5. Some reliance was placed on the decision in Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 . In that case an argument was put forward that the principle of res judicata would not apply to ex parte orders passed on execution but only to ex parte decrees in suits and this argument was not accepted by the learned Judges. In the present case it is not necessary to differentiate between ex parte orders and other orders, because there has been no decision, ex parte or otherwise, on the question which is at issue in this application. Therefore, that decision does not assist the appellant. The lower Courts were right in holding that the third defendant was not debarred from putting forward his claim to the property, as having fallen to his share in the prior partition. As he made this claim in his capacity of a party to the proceedings, the case falls under Section 47, Civil Procedure Code and an appeal lies. This is ret a case of a claim made by a stranger who, if his claim is negatived under Order XXI, Rule 58, has to bring a suit to establish his right.
6. The appeal against appellate order, therefore, fails and is dismissed with costs.