DURGAMMA, LEGAL REPRESENTATIVE OF CHINNABBA NAIDU Vs. D. KAMAKSHIAMMA

JUDGEMENT

(1.) THE Judgment -debtor has preferred this civil miscellaneous second appeal against the judgment of the Subordinate Judge of Kancheepuram allowing an appeal against the order of the District Munsif of Tiruttani in E. P. No. 242 of 1968 in S.C No. 253 of 1956. The respondent obtained a decree in S.C. No. 253 of 1956 against one Chinnabba Naidu and filed several execution petitions for recovery of the decretal amount, without being able to realise any amount. Meanwhile Chinnabba Naidu died and the appellant Durgamma was impleaded as his legal representative. As against the legal representative, the decree -holder filed E. P. No. 242 of 1968 and attached two items of proportion and brought the same to sale. Durgamma filed an application in E. A. No. 398 of 1967 claiming that these two items belonged to her in her own right and not to the original judgment -debtor. Her application was, however, dismissed and the properties were brought to sale on the 9th February, 1970 and purchased by a third party. Subsequently, at the instance of the decree -holder himself this sale was set aside on the ground that the judgment -debtor had no saleable interest in those properties as well as on the ground that the Court auction -purchaser had failed to deposit three -fourth share of the sale price. The sale was actually set aside on 30th March, 1970. On 9th April, 1970, that is to say, over 12 years after the date of the decree, the decree -holder filed an application in E. A. No. 260 of 1970 praying for substitution of two other items of properties in the main execution petition No. 242 of 1968. Notice of this application was issued and served upon the appellant who appeared by counsel in E. A. No. 260 of 1970 and applied for time for filing a counter. The said execution application stood posted to 1st July, 1970. But on that date no counter was filed. On 14th July, 1970, in the absence of any counter, the District Munsif allowed E. A. No. 260 of 1970 and directed that the two fresh items of properties be substituted in the main execution petition. The execution petition was amended in accordance with this order and a new schedule of properties was attached to the execution petition. The substituted properties were attached subsequently and a sale notice was issued to the appellant who appeared by counsel on 25th January, 1971 and filed a counter to the main execution petition. The main objection taken in the counter was that the amendment of the execution petition more than 12 years after the date of the decree was invalid and illegal and consequently the attachment of the fresh properties included in the schedule by virtue of the amendment and the proposed sale thereof was illegal. This objection found favour with the District Munsif, who dismissed the main execution petition No. 242 of 1968 on this ground. Thereupon, the decree -holder preferred A. S. No. 155 of 1971 to the Sub -Court, Kancheepuram. The first appellate Court disagreeing with the Court of first instance, found that the amendment allowed was not illegal and that the validity of the order of amendment could not be questioned by the appellant in the execution petition, because the judgment -debtor was barred by constructive res judicata from raising this objection. Consequently, the first appellate Court allowed the appeal and remanded the execution petition to the executing Court for the purpose of deciding another objection raised by the appellant to the effect that the properties substituted in the execution petition by the amendment were his separate properties and not the properties of the original judgment -debtor. It is against this judgment that the present second appeal has been filed.

(2.) LEARNED Counsel for the appellant contends that the order passed by the executing Court on 14th July, 1970 in E.A. No. 260 of 1970 allowing an amendment of E. P. No. 242 of 1968 was in the nature of an interlocutory order and that it was not necessary for the judgment -debtor to prefer an appeal against that order, but he could wait instead and raise the objection in the execution petition itself, when the substituted properties were actually attached. Learned Counsel went the length of stating that the order allowing the amendment was not an appealable order at all and that under Section 105 (1), Code of Civil Procedure the appellant could, in an appeal against the final order in the execution petition, set forth any error, defect, or irregularity in an interlocutory order affecting the decision of the case, as a ground of objection in the memorandum of appeal. As the respondent in this appeal did not enter appearance, I appointed Mr. Ramamurthi as amicus curiae and I must record with appreciation the assistance he had rendered the Court by citing the relevant rulings. In Veluthandi Beerankutty v. Ameth Mammu : (1936) 71 MLJ 256 , Venkatasubba Rao, J., had to consider whether an order directing an amendment of the execution petition by including a fresh prayer for the attachment of the judgment -debtor's immovable properties after the expiry of 12 years from the date of the decree, was an appealable order or only an interlocutory order. The learned Judge had no doubts on the question that the order was one which arose between the parties to suit and related to the execution of the decree and accordingly the requirements of Section 47, Code of Civil Procedure, were satisfied. But the learned Judge proceeded to investigate whether the order satisfied the definition of. the word, ''decree" in Section 2 (2), Code of Civil Procedure which is defined to mean "the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final". The learned Judge held that the order allowing the amendment of the execution petition did not constitute final adjudication, conclusive as regards the Court expressing it, determining the rights of the parties. According to the learned Judge, the Court's decision was only in the nature of a finding and had the Court gone further and attached the property, the defendant would then have the right of preferring an appeal. Upon this reasoning the learned Judge held that the order allowing the amendment was incidental and interlocutory and not final. In this view the learned Judge held that no appeal lay against that order.

(3.) THE next question that arises for determination is, whether it was open to the appellant -judgment -debtor, who had failed to challenge the order in appeal, to raise the question at a subsequent stage of the execution proceedings, after the notice of sale of the substituted properties was served upon her. It is settled law that where an appealable order prejudicial to the judgment -debtor is passed, but the judgment -debtor failed to prefer an appeal against such an order, he would be barred from disputing the correctness of that order at a subsequent stage. As observed by Horwill, J in Puttappaji v. Dodda Mallappa and Ors. : AIR 1944 Mad 420 .