Decided on March 17,1944



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 The attachment, therefore, was withdrawn.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. 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.
(3.) 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.;

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