Plea regarding want of jurisdiction of Executing Court.

S. RAMACHANDRA IYER, C.J. :- This is an appeal by the second judgment-debtor under a decree passed by the District Court of the Civil and Military Station, Bangalore, against the order of the learned Subordinate judge, Devakottai, directing execution to proceed. The execution proceedings had a chequered career and it will be useful to refer to it if only to appreciate the only point now in controversy between the parties.

2. The first judgment-debtor, G.V. Raman, was carrying on business under the name of Imperial Railway Materials Corporation at Krishna Rao Naidu St. Thyagarayanagar, Madras, He had his residence at No. 19 Crescent Park St. Thyagarayanagarj Madras. The appellant who is the second judgment-debtor belongs to Shanmuganathapuram, a village three miles from Devakottai. He was a friend of G.V. Raman and admittedly he used to stay in the latters-place of business whenever he used to come to Madras. It is also admitted that he resided during. January-February 1937 at No. 19 Crescent Park St. On 17th June 1937 both G.V. Raman and the appellant joined in the execution of a promissory note in favour of the Bangalore Bank Ltd. for a loan of Rs. 26056 taken by the former from the bank. The bank subsequently went into liquidation. The Official Liquidator who then came on the scene instituted1 O. S. No. 16 of 1940 in the District Court of the Civil and Military Station at Bangalore to recover the amount due under the promissory note from both the executants. Presumably summons in the suit was taken to No. 19 Crescent Park Street to both the debtors.

They did not appear and there was a decree on 30-9-1949 for a sum of Rs. 35713-9-1 against both of them, with subsequent interest and costs. The Official Liquidator took certain steps and realised some amounts from the first judgment debtor towards the decree. He later assigned the balance due under this decree and some other decrees also in favour of Chinnaswami Mudaliar (who is now dead and whose sons, the respondents have been brought on record) after receiving a sum of Rs. 7000, as consideration for the transfer. It is seen from the judgment of this Court in C. M. A. No. 311 of 1956 (in the course of the present execution proceedings), that the respondents father too was able to realise some amounts. But we are not able to ascertain from the records now available as to whether that is so or not. The record only reveals that a number of execution petitions-had been filed against the first judgment-debtor : G.V. Raman, there being nothing to show payments by him to the assignee decree-holder. On 19-05-1952, the respondents father filed an application before the Court which passed the decree for recognition of the assignment of the decree in his favour and for transmission of the same to the High Court, Madras for execution.

Notice was ordered on 23-06-1952 to the assignor as well as the appellant. The former was duly served. But service on the latter which was sought to be effected by registered post, was ineffective as it was returned by the postal authorities unserved. This was on 09-07-1952. Without even making an attempt to ascertain the residence of the appellant, an application for substituted service was immediately filed. There is nothing on evidence to show that the Court was satisfied that there was evasion of service on the part of the appellant. But yet it ordered notice to the appellant by substituted service by publication in the Indian Express, an English newspaper published in Madras. On 12-07-1952 there was a laconic publication in that paper without even referring to the address of the appellant giving the information that the petition for execution was posted for hearing on 14-07-1952 and that it would be heard ex parte if the "respondent (appellant herein) failed to appear on that date." The application which was taken upon 14th was adjourned to 28th of the same month to-enable the respondents father to produce the assignment deed executed in his favou