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Case Number

A.A.A.O No. 258 of 1946, against order of Dist. Court, Coimbatore, D/- 27-11-1945

Advocates

T.V.Ramanatha Iyer
T.R.Srinivasan
S.Gopalaratnam
K.S.Ramamurthy

Judges

Krishnaswami Nayudu, J.

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Smart Summary

Structured Summary of the Judgment

Factual and Procedural Background

The decree-holder (appellant) obtained a decree in O.S. No. 621 of 1930 against defendant 1 (the mother of defendant 2) for Rs. 480 and costs. Execution proceedings were initiated in E.P. No. 687 of 1933; some properties were sold in execution and purchased by the decree-holder. Defendant 1 died in September 1936.

E.P. No. 1661 of 1936 was filed on 3 November 1936 to recover the balance due. In that petition the decree-holder sought to implead defendant 2 (the only daughter) as the legal representative of defendant 1 and to attach and sell immovable properties described in a schedule. An endorsement on the petition indicated notice was ordered to defendant 2 for 5 December 1936 and contained the office endorsement “D.2 affixed. V.M. attests.” The learned District Munsif's order recorded only “D.2 absent. L.R. of D.1 added as D.2. Attach item 1.”

Pursuant to that order, sale papers and notices were issued; on 9 April 1937 the learned District Munsif recorded that the defendant was absent and ordered proclamation of sale. An application for permission to bid (E.A. No. 1080 of 1937) was personally served on 10 August 1937 and, according to the record, defendant 2's thumb impression was taken. Lot No.1 was sold on 28 September 1937 to the decree-holder and the sale was confirmed on 1 November 1937.

Thereafter, to realise the remaining balance, the decree-holder filed E.P. No. 1165 of 1940 for attachment and sale of rights under a usufructuary mortgage dated 28 October 1911. Notice in that petition was also taken out to defendant 2; the District Munsif held the service to be sufficient. That E.P. was not pressed and was dismissed.

The present execution petition, E.P. No. 160 of 1943 (filed 4 March 1943), sought recovery of the remaining balance and attachment and sale of certain immovable properties. Defendant 2 objected, among other grounds, that the properties were not the properties of defendant 1 and therefore not liable to attachment. The decree-holder contended that by reason of earlier execution petitions (E.P. No. 1661 of 1936 and E.P. No. 1165 of 1940) defendant 2 was precluded from raising the objection (constructive res judicata). Both the courts below found for defendant 2 on service/res judicata grounds. The decree-holder appealed; the appeal was dismissed with costs.

Legal Issues Presented

Whether defendant 2 (the judgment-debtor) was precluded by reason of earlier orders in prior execution petitions (notably E.P. No. 1661 of 1936 and E.P. No. 1165 of 1940) from raising an objection in E.P. No. 160 of 1943 that the properties sought to be attached were not defendant 1's property (i.e., whether constructive res judicata applied).
Whether the mode of service recorded in the earlier proceedings (endorsement that notice was affixed and attested by the V.M., and later thumb impression on an application to bid) satisfied the requirements of Order 5 Rule 19 of the Code of Civil Procedure so as to bind defendant 2.
Whether a declaration by the executing Court (or the lack of one) under Order 5 Rule 19 is fatal to invoking the constructive principle of res judicata in execution proceedings.
Whether E.P. No. 1165 of 1940 (involving different properties: the usufructuary mortgage debt) would bar defendant 2 from contesting attachment of the properties in the present petition.

Arguments of the Parties

Appellant's Arguments

The appellant (decree-holder) submitted that in respect of E.P. No. 1661 of 1936 the order made after a notice was ordered to defendant 2—together with the court's acts (affixture endorsed and subsequent attachment and sale steps)—amounted to sufficient notice in law; even if there was no formal declaration of ex parte status, the affixture and continuation of proceedings meant the executing Court treated service as sufficient.
The appellant argued that E.P. No. 1165 of 1940, where notice was affixed and the learned District Munsif declared service sufficient, would operate to preclude defendant 2 from raising the same question (i.e., that the properties were not liable to attachment) by way of constructive res judicata.
The appellant relied on authorities (e.g., Adhilakshmi Ammal v. Srinivasa Goundan and Venkata Rayanim v. China Bapanna) to support the proposition that an omission to make a formal declaration under Order 5 Rule 19 could be a mere omission and that the subsequent conduct of the Court may show that service was effectively considered sufficient.

Respondent's Arguments

Defendant 2 contended she had no notice of E.P. No. 1661 of 1936, that she was not properly served, and therefore could not be bound by any decision in that petition.
The respondent relied on authorities (including Azhagappa v. Ramanathan and Ramaswami v. Ghinnappa) to the effect that when a notice has to be affixed owing to reported absence, Order 5 Rule 19 requires the Court to either declare the service sufficient or order further service; omission to make that declaration is fatal when seeking to apply constructive res judicata against a defendant in execution proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Adhilakshmi Ammal v. Srinivasa Goundan, 1944-1 M.L.J. 36 (A.I.R. 1944 Mad. 193)	That whether failure to declare a judgment-debtor ex parte is a mere omission depends on the facts; subsequent procedure may show the Judge treated service as sufficient.	The Court considered this authority but found the facts of the present case did not warrant applying its principle; here the executing Court did not demonstrably apply its mind or make the declaration required by O.5 R.19.
Venkata Rayanim v. China Bapanna, 1939-2 M.L.J. 926 (A.I.R. 1940 Mad. 213)	Observation that the absence of an express declaration under O.5 R.19 does not necessarily mean summons was not duly served; Courts may look at surrounding circumstances.	Cited by counsel for appellant; the Court acknowledged the view but held that in the present factual matrix the protections of O.5 R.19 required a clearer judicial declaration before applying constructive res judicata.
Govindakrishna Aiyar v. Shankaralinga, 1942-2 M.L.J. 558 (A.I.R. 1943 Mad. 55)	Refers to Venkatarayanim v. Chinna Bapanna; concerned declaring a guardian of defendants ex parte when return showed evasion of service.	Used to show circumstances where Court may properly declare defendants ex parte; distinguished on facts because in the present case the Court did not examine the V.M. or process-server and did not make the required declaration under O.5 R.19.
Azhagappa v. Ramanathan, 64 M.L.J. 629 (A.I.R. 1933 Mad. 466)	When notice is ordered to be affixed owing to reported absence, the Court must either declare the service sufficient or order further service under O.5 R.19; omission to make such a declaration is fatal when applying constructive res judicata in execution petitions.	The Court relied on this principle to hold that omission to make the mandatory declaration in E.P. No. 1661 of 1936 precluded treating defendant 2 as properly before the Court for purposes of res judicata.
Ramaswami v. Ghinnappa, 64 M.L.J. 637 (A.I.R. 1933 Mad. 406)	Reiteration of the Azhagappa principle regarding the necessity of the Court's declaration under O.5 R.19 in execution proceedings.	Cited to reinforce the mandatory character of O.5 R.19 in cases where constructive res judicata is invoked; supported the conclusion that the earlier omission was fatal.
Chidambaram Chetti v. Theivannai Ammal, 46 Mad. 768 (A.I.R. 1924 Mad. 1 F.B.)	Rule that at the stage of sale proclamation/settlement, it is not open to the defendant to raise an objection that the properties to be sold are not liable to be proceeded against.	The Court noted this authority in addressing the appellant's contention that later personal service (thumb impression on the leave-to-bid application and notice of sale settlement) cured any earlier defect; the Court held such later notices did not permit raising the substantive objection at the sale stage, and thus those later acts did not estop defendant 2 as to the main issue of improper initial service and res judicata.

Court's Reasoning and Analysis

The Court framed the principal question as whether defendant 2 was precluded by earlier execution petition orders from challenging attachment of certain properties in the present petition. The Court analyzed the question by focusing primarily on service and Order 5 Rule 19 of the Code of Civil Procedure (CPC), which governs the procedure when a summons (or by analogy a notice) is returned under the rules dealing with service by affixture or substituted service.

The Court observed that Order 5 Rule 19 requires the Court, when faced with an unverified return or even when a return has been verified, to examine the serving officer or cause him to be examined and then either declare that the summons has been duly served or order further service as it thinks fit. This procedural step is mandatory when affixture is employed and is particularly significant where a party's absence from the record is to be used subsequently for the constructive application of res judicata.

On the facts, the Court found that the recorded material in E.P. No. 1661 of 1936 consisted mainly of office endorsements such as “D.2 affixed. V.M. attests.” The learned District Munsif's order itself simply stated “D.2 absent. L.R. of D.1 added as D.2. Attach item 1.” The Court noted that the V.M. (village munsif/process-attestor) was not examined under oath, the process-server was not examined, and the Court did not make the explicit declaration required by O.5 R.19 that service was sufficient. In short, the executing Court had not applied its mind in a manner mandated by the Code before proceeding.

The Court emphasized that the principle of constructive res judicata must be applied cautiously in execution petitions: it is essential to establish satisfactorily that a person was a party to the earlier proceedings and was properly served. Where service was by affixture and the mandatory declaration under O.5 R.19 was omitted, prior orders cannot be readily treated as binding against a person who says they were not properly served.

The appellant's reliance on subsequent procedural acts—such as an application for leave to bid (E.A. No. 1080 of 1937) on which a thumb impression was recorded, and later proceedings relating to sale proclamation and confirmation—was considered. The Court held that those later acts did not cure the absence of the mandatory declaration at the stage when notice by affixture was employed and did not permit the application of constructive res judicata to bar the substantive objection in the present petition. The Court further held that even if E.P. No. 1165 of 1940 had contained a declaration of sufficient service, that petition related to different properties (the usufructuary mortgage debt) and therefore could not operate as a binding adjudication on the ownership of the distinct properties sought to be attached in the present E.P.

Holding and Implications

Holding: The appeal is dismissed. The Court ordered the appeal to be dismissed with costs. For emphasis, the core ruling is:

APPEAL DISMISSED

Implications:

Direct effect on the parties: Defendant 2 is not precluded by the earlier execution proceedings (E.P. No. 1661 of 1936 and E.P. No. 1165 of 1940) from raising the objection in E.P. No. 160 of 1943 that the properties sought to be attached are not defendant 1's properties. The courts below were correct to find in favour of defendant 2 on the service/res judicata issue.
Legal consequence regarding procedure: The judgment underscores the mandatory nature of Order 5 Rule 19 in cases of affixture/substituted service and cautions against lightly applying constructive res judicata in execution proceedings where the mandatory declaration (that service was sufficient) is omitted and the serving officer or attesting persons have not been examined.
Broader precedent: The opinion does not purport to set a novel legal principle beyond applying and reaffirming existing authorities; it reiterates established requirements for the fair application of constructive res judicata in execution petitions. If no broader or new precedent was explicitly stated in the text, the direct practical consequence is the dismissal of the appeal and confirmation that prior defective procedural steps will not automatically bind an absent party.

C.R.K/V.R.B

Final order in the text: Appeal dismissed (with costs).

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Adisesha Ayyar v. Pappammal .

JUDGMENT

1. The question for decision in this second appeal is whether defendant 2, (judgment-debtor) was precluded from raising her objection to the attachment of the properties by reason of the orders made in previous execution petitions, i.e E.P No. 1661 of 1936 and E.P No. 1165 of 1940 on the file of the same Court. The appellant (decree-holder) obtained a decree in O.S No. 621 of 1930 against defendant 1 “the mother of defendant 2, for Rs. 480 and for cost” and in E.P No. 687 of 1933 applied for attachment and sale of certain properties, some properties were sold in execution of the decree and the decree-holder purchased the same. Defendant 1, who is the mother, died some time in September 1936. E.P No. 1661 of 1936 was filed on 3rd November 1936 for the balance of the decree amount and the mode in which the assistance was sought in the execution petition was to implead defendant 2, who was her only daughter as her legal representative and for attachment and sale of the immovable properties belonging to defendant 1, and described in the schedule to the said petition. On this execution petition notice was ordered to defendant 2 for 5th December 1936. The following endorsement appears on the petition:

“Defendant 2 affixed. V.M attests. L.R of defendant 1 to be added as defendant 2. Attach item 1. D2 absent. L.R of D. 1 added as D. 2. Attach item 1, 7th January 1937.

Initialled. D.M

5th December 1936”.

I perused the endorsement in the original execution petition and I find that the order made by the learned District Munsif was only “D.2 absent. L.R of D. 1 added as D. 2. Attach item 1.” The other endorsements are apparently made by the office. Then in pursuance of that attachment sale papers were filed and sale notices were issued by the order of the learned District Munsif dated 18th March 1937 returnable on 9th April 1937. On 9th April 1937 the order of the learned District Munaif was that “defendant absent; proclamation of sale on 6, 7 and batca in throe days”. There too an endorsement of the office papers as “D. 2, respondent affixed, V.M attests.” There was also an application taken by the decree-holder, E.A No. 1080 of 1937 for permission to bid and set off and this application is said to have been personally served on 10th August 1937 and the thumb impression of defendant 2, is stated to have been taken. On 28th September 1937 lot No. 1 was sold, the decree-holder himself purchasing it and the sale was confirmed on 1st November 1937.

2. Subsequently, the decree holder in order to realise the balance still due under the decree, filed E.P No. 1165 of 1940 for attachment and sale of the rights of defendant 1's husband in a usufructuary mortgage executed in his favour dated 28th October 1911. In that execution petition as well notice was taken out to defendant 2, and her thumb impression appears to have been affixed and the learned District Munsif held that the service was sufficient. That E.P was not however pressed and it was dismissed.

3. The present Execution Petition No. 160 of 1943 was filed on 4th March 1943 for recovery of the balance still due and for attachment and sale of the immovable properties mentioned in the schedule. The objection to this E.P was, among others, that the properties were not liable to be attached as they were not the properties of defendant 1. A place of res judicata was raised by the decree-holder appellant that by reason of the earlier execution petition it was not competent for defendant 2, to raise the question as the properties that were sought to be attached in the present execution petition were attached in E.P No. 1661 of 1935 to which defendant 2, was a party. It may be stated that there is no dispute that the properties that were sought to be attached in the present E.P were attached in E.P No. 1661 of 1936 to which defendant 2, was added as a party, but the contention of defendant 2, is that she had no notice of the Execution Petition No. 1661 of 1936, that she was not properly served, and that therefore she was not bound by the decision in that execution petition. Both the Courts found in her favour and the appeal is by the decree-holder. The learned counsel for the appellant argues that in so far as the order in E.P No. 1661 of 1936 was concerned, since it was made after notice was ordered to defendant 2 even though there was no declaration, it must be held to be sufficient notice in law, the notice having been affixed and the Court having declared her ex parte brought her on record and directed the attachment. The second contention is that in any event the order in E.P No. 1165 of 1940, though the petition was dismissed was made after notice to the second defendant was held to be sufficient and a declaration was made to that effect and as such by reason of E.P No. 1165 of 1940 it was not competent for defendant 2 to raise an objection to the attachment in the present execution petition.

4. As regards the first contention, O. 5, R. 19 of the CPC, lays down the procedure to be followed in considering and deciding as to what is the proper service in regard to summons which is also applicable to notices. Order 5 R. 19 reads as follows:

“Where a summons is returned under Rata 17 the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.”

In this case, from the endorsement I am unable to say that the learned District Munsif has proceeded under R. 19. He appears to have accepted the endorsement of the office, “D 2 affixed. V.M attests”, as sufficient compliance of what is required under R. 19. The learned counsel, however relies on a decision in Adhilakshmi Ammal v. Srinivasa Goundan, 1944-1 M.L.J 36 : (A.I.R (31) 1944 Mad. 193) where it was held that in regard to service one has to consider the facts of each case and decide on those facts whether the failure to declare a judgment-debtor ex parte was a mere omission, and, the sub-sequent procedure made it clear that the Judge did consider the service of notice, sufficient, or whether the facts of the case left in some doubt the question whether there was a proper service or not. In that case it was held that the defendant refused service on the frivolous ground that his father's name was not correct, despite the fact that his father was served at the same time and was a party to the same proceedings and that the executing Court should have considered the service sufficient. The learned Judge held that the failure in that case to declare the judgment-debtor as ex pxrte was a mere omission and the subsequent procedure made it clear that the Judge did consider the service sufficient. Reliance on the circumstances and the nature of the execuse for not receiving the summons was also taken into account and I do not think that the facts of the present case would warrant the application of the principle laid down in Adhilakshmi Ammal v. Srinivasa Goundan, 1944-1 M.L.J 36 : (A.I.R (31) 1944 Mad. 193).

5. The learned counsel has also relied on the decision in Venkata Rayanim v. China Bapanna, 1939-2 M.L.J 926 : (A.I.R (27) 1940 Mad. 213). There the question of service was considered in an application for setting aside an ex parte decree. The learned Judges observe that:

“Even though it is desirable that all Courts should observe the mandator; provision of O. 5, R. 19 and ‘either declare that the summons has been duly served or order such farther service as it thinks fit’, the absence of such an express declaration will not involve as a necessary consequence a finding that a summons has not been duly served.”

There is this circumstance in that case that the learned Subordinate Judge held that the appellant really knew all about the suit as it was going on. The other case is Govindakrishna Aiyar v. Shankaralinga, 1942-2 M.L.J 558 : (A.I.R (30) 1943 Mad. 55) which refers to the decision in Venkatarayanim v. Chinna Bapanna, 1939-2 M.L.J 926 : (A.I.R (27) 1940 Mad. 213). That is a case of declaring a guardian of defendants ex parte. There what happened was that notice was taken out and the return of notice was that the guardian was evading service. On this return being brought to the notice of the Court the Court declared the defendants ex parte.

6. I do not think that the failure to comply strictly with what is laid down in O. 5, R. 19 could be applied to a case of this bind where defendant 2 is to be precluded from raising the plea which is open to her by application of the constructive principle of res judicata. It is essential that in such cases it should be satisfactorily proved that she was a party to the earlier proceedings and was properly served. Admittedly there was no personal service of the E.P and the service, which is sought to be relied upon, is the endorsement of the office that notice has been affixed and the V.M has attested it. The V.M was not examined, nor was the process-server, and the Court has not applied its mind and held that it was sufficient. The principle of res judicata should be applied very cautiously to E.Ps The learned counsel for the respondent Mr. Srinivasan, has cited Azhagappa v. Ramanathan, 64 M.L.J 629 : (A.I.R (20) 1933 Mad. 466) which correctly appreciates the position regarding the application of the principle of constructive res judicata in E.Ps and with reference to the service of notice, it was held that:

“When a notice of an execution application is ordered by Court to be served on the defendant and the notice has to be affixed to the door of the dwelling house owing to the reported absence of the defendant. The Court must either declare it sufficient or order such service as it thinks fit, as it is imperatively required to do so under O. 5, R. 19 of the CPC and in a case where it is sought to apply the constructive principle of res judicata against the defendant, the omission of the Court to make such a declaration an enjoined by the Code is fatal.”

That judgment was again reiterated by Pakenham Walsh, J. in Ramaswami v. Ghinnappa, 64 M.L.J 637 : (A.I.R (20) 1933 Mad. 406). It was also argued that in any event defendant-respondent 2 had notice of the subsequent proceedings relating to sale where there was a personal service by reason of the affixture of the thumb impression in the notice issued on the application for leave to bid (E.A No. 1080 of 1937) and as regards the notice of the settlement of the sale proclamation, but I do not think that notice was sufficient as it was not open to her at this stage to raise an objection that the properties that are Bought to be sold are not liable to be proceeded against (vide Chidambaram Chetti v. Theivannai Ammal, 46 Mad. 768 : (A.I.R (11) 1924 Mad. 1 F.B).

7. The other contention of the appellant that in any event E.P No. 1165 of it 1940 filed by the appellant for attachment of the usufructuary mortgage debt in which notice was affixed and where there was a declaration that the service was sufficient, would be a bar to the raising of the plea that the properties which are the subject-matter of the present execution petition are not liable to be attached. The simple answer to that objection is that the properties that were sought to be attached and sold in B.P No. 1165 of 1940 are different from the one in the present execution petition.

8. The issue that could be said to be res judicata is whether the property belonged to defendant 1 or not and the property being different it cannot be said that the decision in respect of owner ship of one property could be a decision with regard to the ownership of a different property.

9. In the result, the appeal is dismissed with costs.

C.R.K/V.R.B

10. Appeal dismissed.

Adisesha Ayyar v. Pappammal .

Structured Summary of the Judgment

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Adisesha Ayyar v. Pappammal .

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