1. In O.S. No. 346 of 1904, the present appellant obtained a decree against one Singaravelu Piliai, who was the 1st defendant in the suit and died after judgment. His minor son who was 2nd defendant in the suit, was first represented by the present respondent, who is 1st defendant's undivided brother, as his guardian ad litem. That decree was attempted to be executed in E.P.R. No. 885 of 1917 and, on the 6th of March, 1918, it was held by the District Munsif of Kumakonam, in execution, that the execution petition was barred by limitation and it was dismissed. While that execution petition was pending, the 3rd defendant, the respondent in these proceedings, who was made a party to the execution application, as one of the legal representatives of the 1st 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 1st 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 was 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 2nd defendant was represented by his mother, as grardian 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 3rd defendant, then applied for review of the order, dismissing his 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 properly 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 attachment was ordred 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 by the District Munsif, he is now deba red 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 lime 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 1st defendant or to the 3rd defendant in his individual right. This being so, the principle of res judicata arising out of Section 11 of the 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 ii vestigate the matter on the ground that it was unnecessary.
5. Some reliance was placed on the decision in Subbiah Naicker v. Ramanathan Chettiar  37 Mad. 462. In that case an argument was put forward that the principle of res judicata would not apply to ex parte orders passed in 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 3rd 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 as a party to the proceedings, the case falls under Section 47 Civil Procedure Cole and an appeal lies. This is not a case of a claim made by a stranger who, if his claim is negatived, under Order 21, Rule 58, has to bring a suit to establish his right.
6. The appeal against order therefore fails and is dismissed with casts.