Judgement
- This is an appeal by the 1st judgment-debtor against the order of the lower appellate court confirming the order of the District Munsif of Amalapuram, by which his application under O.XXI R.90 and S.47 C.P.C. to set aside a sale of his properties in execution held on 12-9-1955, was dismissed.
2. The concurrent finding by both the courts below is that the sale was not vitiated by any irregularity nor did the appellant sustain any substantial injury, the price fetched being not too low. These are findings of fact based on an appreciation of the evidence, and are binding, in the second appeal.
3. The main point raised by the learned counsel for the appellant is, that there was no proper notice under O.XXI, R.22 C.P.C. and that the sale is therefore void - Rajagopala Aiyar v. Ramanuja Chariyar, AIR 1924 Mad 431 (FB). It appears from the notes paper in Execution Petition No.347 of 1954 that notice under O.XXI, R.22 was issued to both the judgment-debtors, that it was served on both the judgment-debtors by affixture for 21-12-1954, that only the second judgment-debtors who is the brother of the first judgment-debtor, appeared, that the first judgment-debtor was declared absent, and that the proceedings were continued in the 1st judgment-debtors absence, as provided under O.XXI R.23. The learned counsel refers to O.5 R.19 and contends that where a notice is affixed, the court has to declare the service sufficient, which is not shown in the notes-paper to have been done. But this point is covered by two Division Bench decisions: of the Madras: High Court in Venkata Rayanim Varu v China Bapanna, AIR 1940 Mad 213, and Govinda Krishna v. Sankaralinga Naicker, AIR 1943 Mad 55, where it was held that such a declaration may be implied by the subsequent proceedings of the court in the matter. These decisions were followed by a Single Judge in Adhilakshmi Ammal v. Srinivasa Goundan AIR 1944 Mad 193 and are binding on this Court. The learned counsel seeks to distinguish the decisions on the footing of the observations of Horwill, J. in AIR 1944 Mad 193 that
the court 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 subsequent procedure made it clear that the Judge did consider the service, sufficient, or whether the facts of the case left in some doubt the "question whether there was a proper service or not."
He points out that in AIR 1940 Mad 213, there was service by affixture four times that, in AIR 1943 Mad 55 the return was that the judgment-debtors guardian was evading the notice and that in AIR 1944 Mad 193 the return was that the judgment debtor refused to take the notice on the frivolous ground that his fathers name was not correct. He urges that here there is absolutely no information as to the circumstances in which the notice of the first judgment-debtor was affixed except the entries in the notes paper that he had gone to Rajahmundry. But it was the duty of the appellant to have obtained and marked the return on the notice under O XXI R.22 and adduced necessary evidence to show that it was improperly affixed. As he has not made any complaint throughout that he had no opportunity to adduce all his evidence, I am not inclined to accede to his belated request that the matter should be remanded in order to allow him to let in additional evidence and obtain a finding as to the circumstance in which the notice was affixed.
4. It appears that the second judgment-debtor, who is the brother of the first judgment-debtor was living in the same house. As already mentioned, both of them were served by affixture, but while the second judgment-debtor put in his appearance on 21-12-1952, the first judgment-debtor stayed away. In these circumstances there is prima facie no reason to think that the service by affixture was reduced to a formal ritual and was not sufficient for the first judgment-debtors obtaining knowledge of the execution proceedings.
5. The learned counsel next relies on the line of decisions the most recent of which is Adisesaa Ayyar v. Papammal, AIR 1950 Mad 341, where Krishnaswamy Naidu J. sitting singly stated that where the principle of constructive "Res Judicata" is sought to be applied to cases of service or process on a party by affixture the requirements of O.5 R.19 should be proved to have been strictly complied with. Though the earlier decisions are similarly distinguished in AIR 1944 Mad 193 for the purpose of applying the principle of constructive res judicata the two Division Bench decisions AIR 1940 Mad 213, and AIR 1943 Mad 55 are directly in point for the purpose of the question raised under O.5, R.19 and have to be followed.
6. The appeal fails and is dismissed with costs.
Appeal dismissed.