TMI Blog1969 (6) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to the above encumbrance and the purchaser was one Seshadri Iyengar, the second respondent in E. A. 120 of 1960, The notice of sale sent by registered post was returned as refused and the subsequent notice sent through the Court for the hearing on 19-1-1959 is said to have been affixed to the outer door of the house of Parasurama Odayar on 26-12-1958 by the process server on account of the absence of Parasurama Odayar from the village. On 19-1-1959 the notice in the execution petition was as follows- Respondent absent, Court notice affixed. Respondent called, absent. Set ex parte. The sale was fixed on 18-3-1959. It finally took place on 22-7-1959 and was confirmed on 28-8-1959. 3. Parasurama Odayar alleged that he came to know of the sale only on 20-1-60 and he filed the application E. A. No. 120 of 1960 on 22-1-60 to have the sale set aside. He averred that he had no notice whatever of the sale and that the sale conducted without notice to him was void. He claimed that the property was worth ₹ 10,000 initially, the upset price was ₹ 9,000 subject to the encumbrance of ₹ 500 and urged that the sale was conducted fraudulently and with a material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to this contention, Kailasam, J. pointed out that, on the facts there was the finding of the Courts below that the judgment-debtor came to know of the sale at least on 20-11-1959. What happened was that the decree-holder, after the impugned sale, filed the next execution petition, E. P. 301 of 1959, to realise the balance of the decretal amount. Notice thereof was served on the judgment-debtor on 20-11-1959 and he paid the balance amount. The learned Judge accepted the finding of fact that he had knowledge of the date of the sale at least on 20-11-1959, and, since the petition was filed more than thirty days thereafter, it would be time-barred if Article 166 applied. 5. It was then contended on behalf of the judgment-debtor that the sale was void ab initio, because there was no service of notice under Order 21, Rule 66, that it did not require to be set aside at all and that consequently Article 166 of the Limitation Act would not apply and the residuary Article 181 would apply, providing for a period, of three years from the time when the right to apply accrued. If this contention was correct, there could be no doubt that the application was in time. In support of this cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the decree-holder and the judgment-debtor), and the other was the notice of an application by the decree-holder to reduce the upset price. The summonses are Exs. B-6 and B.9. Both of them were affixed on 26-12-1958 to the outer door of the house of the judgment-debtor. The endorsements are similar. It is sufficient to note the endorsement in Ex. B-6. There is first the endorsement dated 26-12-1958 of the Karnam to the following effect:-- On enquiry made about the defendant mentioned in the notice, he is not to be found. It is learnt from the neighbours and the women of the house that he has gone to Odukathur or Vellore taluk and the date of his return is not known. Hence the summons is affixed to the outer door of his residential house. Below there is a 'return' dated 5-1-1959 of the process server, Kuppuswami, stating-. I made enquiries on 26-12-1958 about the defendant herein in Nadukuppam village in Ami taluk. It was learnt from the neighbours that he had gone to Odukathur of Vellore taluk and that his date of return was not known. Hence copy of the summons was affixed to the outer door of his residential house with the karnam as a witness. There is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contrary intention appears, it must be taken that the rule is mandatory and failure to observe the rule will render the service void. 8. On the second aspect, the learned Judge expressed himself thus:-- Regarding the failure by the Court to declare summons duly served or not, there is conflict of authorities. The learned Judge went on to point out the conflict of authorities. 8-A. Thus, in two Bench Decisions in Azagappa Chetty v. Ramanathan , (1933)64MLJ629 and Ramanadhan v. Veerappa AIR1937Mad84, it was held that, where there was no declaration by the Court under Order V, Rule 19, in the previous execution petition, the judgment-debtor would not be precluded by the doctrine of constructive res judicata in the later execution petition, from putting forward his objections to the execution. These decisions were followed by single Judges in three decisions, namely, Ramaswami Chettiar v. Chinnappa Chetty , AIR1933Mad406, Viswanatha v. Mu-tugappan AIR1935Mad438 and Palaniappa v. Thaivanai , AIR1936Mad812. As against these, there are two Bench decisions in Venkatarayanim Varu v. China Bapanna AIR1940Mad213 and Govinda Krishna V. Sankaralinga AIR1943Mad55, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides a detailed procedure, and consequently the general procedure prescribed elsewhere in the Code cannot be made applicable to execution proceedings. But this contention of the learned counsel overlooks the provisions of Order XLVIII, Rule 2 which says that all orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons . There is no provision in Order XXI as to the manner of service of the notice under Order XXI, Rule 66 and hence Order XLVIII Rule 2 will apply, which means that the provisions of Order V relating to the manner of service will apply even to the notice Issued under Order XXI, Rule 66. Hence, the provisions of Order V, Rule 19 will apply. 11. In answering the reference about the effect of the non-compliance with the provisions of Order V, Rule 19, we must remember that we are not answering the question in the abstract, but in relation to an application to have the execution sale declared void. We will have to remember further that the question has been raised by the appellant in order to contend that Article 166 of the Limitation Act of 1908, prescribing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually he did not have notice of the sale and did not even otherwise know of the sale and that the application of Article 166 would take away his valuable right. At this stage it is pertinent to recall the observations of their Lordships of the Supreme Court in Sangram Sing v. Election Tribunal, Kotah [1955]2SCR1 Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. But apart from the above right of the judgment-debtor himself, it should be clear that in order that the executing Court may initially have jurisdiction to proceed with the execution, despite the absence of pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it before the prescribed officer (Nazir). We know of numerous instances where defendants and judgment-debtors come to the Court and state that the process server has not come to their place at all and that the alleged affixture is a myth; and there are several cases where such a contention of the defendant or judgment-debtor has been accepted by the Courts. Such a danger would be minimised if the Court adheres to the provisions of Order V, Rule 19. If it makes it a point to question the serving officer as to what he did when he went to the village and what attempts he made to get at the defendant, there is no doubt that the service would be more real and effective than it would be otherwise. We cannot really over-emphasise the importance of this provision. Very often there is room for thinking that the Court does not even look into the return, but simply Bays Service sufficient, defendant absent; set ex parte . That defeats the salutary purpose for which the detailed provisions have been enacted with anxiety by the Legislature. 13. Sri V. V. Raghavan, the learned counsel for the auction-purchaser was alive to the importance of the affidavit, but sought to contend that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore Kailasam J., on behalf of the judgment-debtor that the starting point under Article 166 of the Limitation Act of 1908 would be the judgment-debtor's knowledge of the sale would have a material bearing on the question we are now considering, whether strict compliance with Order V, Rule 19 is necessary. It may be noted that the initial contention that the judgment-debtor's subsequent knowledge of the date of sale would be the starting point was put forth as a matter of construction of Article 166 itself, irrespective of the question whether there was due service of notice under Order XXI, Rule 66 within the meaning of Order V, Rule 19 that is to say, the argument proceeded on the footing that even if there had been due service, and Article 166 applied, the starting point of limitation would be the judgment-debtor's subsequent knowledge of the date of sale. If that contention were correct, it could be urged (on behalf of the decree-holder or the auction purchaser) that the Court need not at all bother whether there had been strict compliance with the provisions of Order V, Rule 19, because, whether there was strict compliance or not, the starting point of limitation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to apply within thirty days of the date of sale. The solution for this difficulty is simple, namely, that in such a case Art 166 was not meant to apply at all and the residuary Article 181 would apply. Similarly under the Act of 1963 Article 127 (corresponding to Article 166 of the Act of 1908) would not apply and the residuary Article 137 (corresponding to Article 181) would apply. Where the Legislature simply mentioned the date of the sale as the starting point in Article 166 of the Act of 1908, (or Article 127 of the new Act), it would not be open to the Court to add words substituting the date of the judgment-debtor's subsequent knowledge as the starting point but preserving the period of thirty days. To add such words make the words 'the date of the sale' thoroughly useless, because in every case the judgment-debtor would by-pass the provision and file the application within thirty days of his subsequent knowledge. If that was the intention of the Legislature, it could simply have enacted the third column of Article 166 as the date of the judgment-debtor's knowledge of the sale. 17. The decisions of the Supreme Court in [1962]1SCR676 and [1964]1SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved, the Court actually examined all the materials and circumstances of the case to see whether in fact the defendant had been duly served. 18. I may sum up this portion of the case by observing that, since it is not possible to construe Article 166 of the Limitation Act of 1908 as giving thirty days to the judgment-debtor from the date of the subsequent knowledge of the sale and the law will oblige him to file the application within thirty days of the date of the sale where he has notice, actual or constructive, it is necessary that there should be strict compliance with the provisions of Order V, Rule 19, before the decree-holder or the auction-purchaser tan invite the Court to hold that in law there was constructive notice under Order XXI, Rule 66 to the judgment-debtor. 19. The above conclusion of ours about the imperative nature of the provisions of Order V, Rule 19 in a later application by the judgment-debtor to have the execution sale declared void is supported by several decisions cited by Sri K. Para-saran. though they are not direct decisions in the sense of the question having been considered in an application to have the execution sale declared void. We shall co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause before proceeding to sell a man's property the court must give notice to him that it is going to sell his property on such and such a date. If the man does not have such notice, how can he be expected to file the application under Article 166 within thirty days of the sale? 20-A. The above decision settles two points: (1) that want of declaration of due service under Section 82 C.P.C. of 1882 meant that there was no sufficient service in the eye of law; and (2) that, if the respondent in the original appeal had no notice of the appeal and it was heard ex parte, Article 169 of Schedule II of the Limitation Act of 1877 could have no application. This reasoning would apply by analogy to both the aspects of the application before us to have the sale declared void on the ground that the judgment-debtor had no notice under Order XXI, Rule 66. Firstly, since there was no declaration under Order V, Rule 19, that there was due service, there was not sufficient service in the eye of law, so far as Order V, Rule 19 is concerned. Secondly, if the judgment-debtor had factually no notice. Article 166 of the Limitation Act of 1908 would not apply to him at all. It may be noted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale declared void on the ground that no declaration of due service had been made under Order V, Rule 19. 23. In Sundararajulu v. Narayanaswami AIR1927Mad813 , decided by Srinivasa Aiyangar J., the facts were these; In the previous execution petition of 1924, an order for the arrest of the second defendant was passed, but no batta was paid and the order was not carried out. In the later execution petition he sought to contend that the prior execution petition was barred by limitation. The decree-holder set up the plea of constructive res judicata, The judgment-debtor demurred by urging that there was no declaration of due service under Order V, Rule 19 in the previous execution petition. His contention prevailed with the executing Court. The revision petition filed by the decree-holder was dismissed by Srinivasa Aiyangar J. The relevant entry in the execution petition of 1924 may be stated in two parts: Defendants affixed 7th November 1924 as defendant 1 gone out, driving out, his wife said . Absent ..... arrest defendant 2, 25th November 1924 . The first part was in the handwriting of the clerk. The second part was in the handwriting of the presiding offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be invoked against the defendants. The decision of Srinivasa Aiyangar J. and that of the Bench were followed by Walsh J., on the same point of constructive res Judicata in AIR1933Mad406 . The judgment-debtor was permitted to raise the plea of limitation despite the order in the previous execution petition directing his arrest, the reason being that in the previous execution petition there was no declaration of due service under Order V, Rule 19. 24. Before noticing the other decisions, I may pause here and mention straightway that the principle of these decisions on the question of constructive res judicata will apply equally to an application to have the execution sale declared void. The analogy consists in this: the doctrine of constructive res judicata, if applied, would preclude the judgment-debtor from raising the pleas otherwise open to him and, therefore, it was necessary to prove that he had notice of the prior proceedings in which he failed to take the plea and it was in that connection it was held that strict compliance with the provisions of Order V, Rule 19 was necessary. Similarly here the judgment-debtor is told that he must apply within thirty days of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had failed to appear to object to the execution being allowed on the ground that the execution is barred by limitation, his failure to do so coupled with the order for attachment would constitute a bar in any later proceeding. In this particular case, however, there was no personal service nor was there any declaration by the Court that there was sufficient service. This question was considered by a Bench of this Court in (1933)64MLJ629 , and it was held therein that unless there is declaration by the Court that the service made under Order V, Rule 17 is sufficient as required by Order V, Rule 19 C.P.C. any order passed by the Court in the absence of the judgment-debtor will not constitute res judicata. In that particular case notice was affixed on the ground that it had been refused, but it was held that, whether the affixture was by reason of the absence or by reason of refusal, the declaration under Order V, Rule 19 was necessary. 27. Next there is a decision of Pandrang Row J. in AIR1936Mad812 . A decree of the Sub-Court, Sivaganga was ordered to be transmitted to the Sub-Court, Devakottai. Before the Sub-Court, Devakottai, the judgment-debtor raised pleas of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of Section 173, the Court may order him to be arrested and brought before the Court Provided that no such order shall be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure. When any person so brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, the Court may sentence him to fine not exceeding five hundred rupees . 29. It may be doubted whether in punishing a man for disobedience of a summons it is not essential that the summons should be declared to have been duly served in strict compliance with the rule. However, without going too far, it is enough to distinguish the case by noting the following features. Firstly, there were no words, has been duly served in Section 174. Further there was a proviso which enabled the party to satisfy the Court that he did not really have notice. Presumably for these reasons It was held that express declaration was not necessary and that it was enough if the Court was satisfied that the defendant had refused se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was going on. The mortgagor-defendants were his son-in-law and his grandsons and it is not possible to believe his statements that he knew nothing about the suit until after it had been decreed. 32. In Madras the following proviso was introduced to Order IX, Rule 13: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it be satisfied that the defendant had notice of the date of hearing in sufficient time to appear and answer the plaintiff's claim. The decision could be supported under the above proviso, but the proviso will not in terms apply to an application to have an execution sale declared void. 33. The next decision is that of Krishnaswami Aiyangar and Kunhi Ra-man, JJ. in AIR1943Mad55 . The learned Subordinate Judge set aside an execution sale on two grounds, the first of which was that the guardian ad litem of defendants 4 and 5 had not been duly served with notice of the execution petition. The return on the notice was not available, but what was stated to the High Court was that the return on the notice was affixed because the guardian was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt immediately ordered proclamation and sell , it becomes clear that the executing Court did consider the service sufficient. If the service was sufficient, then the second defendant was bound by all orders passed which impliedly decided any question that he might have raised with regard to the executability of the decree. 35. In my opinion, however, for the reasons already stated in full, there must be an express declaration by the executing Court of due service, though, the declaration need not be in any set form. 36. Sri V. V. Raghavan referred to the decision of Yahya Ali, J. in Ammaniammal v. Sabapathi Pillai (1948)1MLJ422 but there is no discussion and the decision is not of any help. 37. The next decision is that of Krishnaswami Nayudu, J. in Adisesha Aiyar v. Papammal AIR1950Mad341 , holding that the doctrine of constructive res judicata could not be applied to shut out the pleas of the judgment-debtor, where in the earlier execution petition there had not been an express declaration of due service. The learned Judge followed the Bench decision in (1933)64MLJ629 and the other decisions to that effect and distinguished the decision of Horwill, J., and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 5, Rule 19. The Bench held: We are of opinion that there is no substance in this argument. We think that the declaration required by Rule 19 is implicit in the circumstances attending the service of the summons on its return to the Court which had issued it. Further, the Court seized of the case clearly recorded in its first day's proceedings of the trial of the case, 'defendant sufficiently served.' The last mentioned circumstance would distinguish the case. 41. In Tahal Singh v. Chainchal Singh, AIR 1934 Lah 985 (2), the return of the process server showed that Tahal Singh, the guardian of the minors judgment-debtors, refused to accept the notice sent to him under Order 21, Rule 66 and a copy thereof was affixed to the outer door of his house. The report was supported by an affidavit, but there was no formal order under Order 5, Rule 19, that Tahal Singh had been duly served. It was observed- The failure to pass a formal order under Order 5, Rule 19 is not a material irregularity in this case and does not vitiate the sale. The decision does not purport to be an authority for all cases. 42. Ved and Co. v. Hayeem , AIR1943Bom340 was an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer on oath or cause him to be so examined by another Court touching his proceedings. It should also declare expressly that the summons has been duly served, though the exact form of that declaration may be in any convenient form, such as, 'it is declared that the (defendant has been duly served or it is declared that the service is sufficient or simply defendant duly served or service sufficient. What is important is that the endorsement of the Court itself should indicate that the presiding officer has applied his mind and considers that the summons has been duly served. 46. RAMAKRISHNAN, J.:-- I had the advantage of perusing the judgment of my learned brother, Venkataraman, J., who has set out the facts as well as the several decisions cited at the Bar at length. It is not necessary for me to recapitulate them. 47. As mentioned by my learned brother, we did not allow arguments to reopen the finding of Kailasam, J., that in the present case the process server has not supplied an affidavit to verify the return. As a result there is non-compliance with the provisions of the first part of Order 5, Rule 19, Civil P. C. That itself would render the service invalid. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging the execution, steps should be taken to effect service by affixture under Order 5, Rule 17, Civil P. C. It is to ensure that this method of service is not abused and that proceedings seriously affecting a party are not concluded behind his back, that Order 5, Rule 19, Civil P. C. lays down the formality of a declaration being made by the Court about due service of the notice by the affixture procedure. In the present case, there is the fact that the Court service had been taken only once. There is next the doubt which the learned Judge, Kailasam, J., felt about the existence of an affidavit by the serving officer. These circumstances clearly gave an occasion for the executing Court to apply its mind and make a declaration of due service. In the above context, one is entitled to look for an explicit declaration by the Court, which would show in unmistakable terms that the Court had applied its mind to the propriety of the service by affixture and was satisfied about the propriety. But the endorsement of the Court on the execution petition made on 19-1-1959 extracted above, might be equally consistent with a mechanical recording of the factum of service by affixture and then set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Judges held that a declaration after due service could be implied, or on and after a return of the process by the serving officer the Court passes orders on the basis that service has been duly made. The learned Judges of the Bench also observed that in the circumstances of the case, the judgment debtor had full notice. In our opinion this decision requires reconsideration in the light of the subsequent Bench decisions in (1933)64MLJ629 and AIR1937Mad84 expressing a different view. 52. AIR1940Mad213 a judgment of Burn, J. and Stodart, J., was a case where the learned Judges held that in the circumstances of that case, the declaration of the sufficiency of service could be implied though it was not expressly made. A reading of the judgment shows that it was a case of setting aside of an ex parte decree presumably under Order 9, Rule 13, Civil P. C. though the judgment does not specifically refer to Order 9. Rule 13, Civil P. C. The learned Judges took into account the circumstances that the appellant really knew all about the suit as it was going on. They went on so far as to say that the circumstances against him were so strong that they had no compunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not 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. After making the above observations, the learned Judge found that in that particular case the affected party had notice of the proceedings and that there were ample reasons to hold that the failure to make a declaration was a mere omission and that the executing Court would undoubtedly have considered the service sufficient In the circumstances of the case. 54. My learned brother, Venkataraman, J., has set out in detail several decisions in favour of making an express declaration including the Bench decisions in AIR1937Mad84 and of Pandrang Row, J. in AIR1933Mad406 . In the first of the above cases, the learned Judges referred to and distinguished 1914 Mad WN 63. They observed that in the case before them there was nothing to show that the Court even looked at one of the returns before ordering the petition. They also observed that in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, like ordering a sale in execution proceedings, (or passing an ex parte decree in a suit) would not ipso facto lead to the inference that the Court had made the necessary declaration by implication. The failure to make the declaration could be equally consistent with the Court having adopted a mechanical approach to the matter--an approach which is not infrequently noticed, on the part of the subordinate Courts. Srinivasa Aiyangar. J. has referred to its prevalence and strongly deprecated it in AIR1927Mad813 . There is also no scope in such cases to draw a presumption about the due performance of official acts under illustration (e) to Section 114 of the Evidence Act, because the very performance of the act Itself is left in a state of doubt. 56. To conclude, the point raised by Kailasam, J. for the answer of the Bench is whether the non-compliance of the requirements of Order 5, Rule 19, Civil P. C. would make the service of the summons ineffective. Our answer to this question is this: Where there is no affidavit of the serving Officer, and where the serving officer is not subsequently examined by the Court, as found by the learned Judge in this case, there is non-complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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