Chockalingam, Minor by His Mother and Guardian, Ammakutti Ammal vs The Madura Meenatchi Sundareswarar Devasthanam

We are unable to agree with the District Judge that the appellant''s claim is res judicata by reason of the order for attachment passed on the

execution application, The decree against the defendants was that he should pay the decree amount out of the assets of the deceased father in his

hands. On the execution application, notice u/s 248, Civil Procedure Code, was issued, but that was merely a notice to show cause why the

decree should not be executed. The defendant did not appear and the order for attachment was passed. As was pointed out in Ramasami Naik v.

Ramasami Chetti; 2 M.L.T. 167 ""when it is endeavoured to obtain execution of something, not granted by the decree, mere notice to the defendant

that further Execution is to be applied for, will not be sufficient to make the order res judicata against him. And where the application is not for the

execution of something which has been directed to be done by any decree or order, so as ipso facto to carry information as to what the claim

made and the relief prayed for are, a notice to the judgment-debtor without inserting the specific prayers will not render the order made upon such

application res judicata.

These remarks apply exactly to the present case. Reliance is placed upon the facts that in a previous application for execution an order for the

attachment of the defendant''s movables was made after notice. There is nothing to show what the contents of that notice were, and the defendant

did not appear. The matter is, therefore, carried no further. We, therefore, reverse the decree of the District Judge and restore the order of the

District Munsif, withdrawing the attachment with costs in this and in the lower appellate Court.