Murugappa Chettiar vs Thirumalai Nadar and Others

Rajamannar, J.—This case came up to this Court once before in S.A. No. 1740 of 1943. The only question is whether attachment was

actually effected in accordance with law of the properties in suit purchased by the father of defendants 1 and 2 from the third defendant on 26th

October, 1928. There was an order for attachment before judgment obtained by the plaintiff in a suit, O.S. No. 524 of 1927, in the District

Munsiff''s Court of Tenkasi. The plaintiff eventually obtained a decree in the suit on nth February, 1928, and purchased the properties in execution

and a sale certificate was issued to him on 17th March, 1533. If the attachment had been validly made then undoubtedly the title acquired by the

father of defendants 1 and 2 would not prevail against the title obtained by the plaintiff at the Court sale. It is clear from Ex. G, that there was an

order for attachment before judgment made by the Court in I.A. No. 1419 of 1927 in O.S. No. 524 of 1927. The question is whether in

pursuance of this order, an attachment was effected in respect of the-suit properties. The properties covered by the order of attachment were

several. Some of them were iyan lands paying revenue to the Government while others were lands in a mitta village, in which there was also a

house. The properties in suit are the lands in the mitta village. At the original trial except Ex. G no other documentary evidence was adduced to

prove the attachment. This was alleged to be due to the fact that when the plaintiff made an application for copies of the relevant documents, the

application was returned with the endorsement ""destroyed"". The District Munsiff held that it had not been proved that the suit properties were

attached before judgment and therefore the sale in favour of the father of defendants 1 and 2 was perfectly valid. This finding of the learned District

Munsiff was confirmed on appeal by the learned Subordinate Judge. In the lower appellate Court there were applications made for admission of

certain additional documents which were rejected. There was then a second appeal by the plaintiff, S. A. No. 1740 of 1943. The learned Judge,

Somayya, J. held that the documents sought to be admitted in evidence ought not to have been rejected. He set aside the decree of the lower

appellate Court and remanded the appeal for fresh disposal after the admission of the new documents. He also gave both parties liberty to adduce

evidence, if need be, in regard to these documents. In pursuance of this order, three new documents were admitted as Exs. AA, BB and CC and

P.Ws. 7 and 8 were examined on behalf of the plaintiff while D.W. 6 was examined for the defendants. After a consideration of the entire evidence

including the evidence newly adduced, the learned Subordinate Judge found that there had been no attachment of the properties in suit and

dismissed the appeal. The plaintiff has again come up in second appeal to this Court.

Mr. T.V. Muthukrishna Aiyar, learned advocate for the plaintiff-appellant, contended that the finding of the lower appellate Court that there had

been no attachment, though essentially a finding of fact, ought not to be accepted because it was vitiated by the omission to apply certain

presumptions which should have been made in the circumstances of the case. Before dealing with this contention it is necessary to ascertain what

facts are to be established before it can be held that a valid attachment in accordance with law had been made in respect of immovable property.

The material provision is Order XXI, Rule 54, of the Code of Civil Pr6cedure, which runs as follows:

(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the

property in any way, and all persons from taking any benefit from such transfer or charge.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the

order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court house, and also, where the property is

land paying a revenue to the Government, in the office of the Collector of the District in which the land is situate ; and where the property is situate

within Cantonment limits, in the office of the local cantonment board and the military Estate Officer concerned.

Obviously the fact that an order for attachment has been passed is not sufficient to establish the factum of attachment. It was observed by their

Lordships of the Judicial Committee in (1928) L.R. 55 I.A. 256 (Privy Council) as follows after referring to Order XXI, Rule 54 of the Code of

Civil Procedure,

In view of these provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was

in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could, dispense

with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another form these propositions. The order is one thing,

the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in

execution of that order, the other things prescribed by the rules in the Code have been done.

It is thus clear that an attachment cannot be said to have been made unless and until the provisions of both the sub-rules have been complied with,

that is to say, there must be (1) an order prohibiting the judgment debtor from transferring or charging the property in any way; and (2) that order

must be proclaimed by beat of torn torn near the property and copies of the prohibitory order must be affixed on a conspicuous part of the

property, on a conspicuous part of the Court house and where the property is land paying revenue to the Government, in the office of the Collector

of the district in which the land is situate (vide Noor Mahomed Mohideen Pillai Taragan and Another Vs. Pechi Ammal, and Pokhpal Singh and

Others Vs. Kanhaiya Lal and Others, . Now let us see what evidence there is actually in respect of the suit properties. It must be remembered that

the order of attachment was procured in respect of several properties some of them paying revenue to the Government and others situated in a

zamin village and the suit properties belong to the latter category. Ex. AA relates evidently to the former properties, because the warrant issued to

the amin directs that there should be affixture in the Collector''s office. There is a return that "" a copy of the attachment warrant...was affixed on the

outside board of the Collector''s office."" Ex. CC is the prohibitory order and the schedule thereto contains the suit properties and a house in the

same village as that in which the suit properties are situate. This document itself does not carry us further than this that a prohibitory order was

issued in respect of the suit properties satisfying the requirements of Sub-rule (1) of Rule 54 of Order 21, of the Code of Civil Procedure. There is

no other documentary evidence. The plaintiff attempted to fill in the gaps by the oral evidence of the retired process server P. W. 8. He deposed in

the chief examination that along with him, an amin Subbiah Pillai also came and effected attachment of the property. The notice of the attachment

was given to him for service while the amin was entrusted with the attachment warrant. He then said:

Exs. CC was affixed in the house on the property after making torn torn in the village.

In cross examination he added,

The amin affixed the warrant in the south facing house.

The evidence already on record does not carry the matter any further. The plaintiff himself gave evidence as P. W. 6. He deposed as follows:

The copy of the attachment order was affixed in the mitta office and it was also published by tom tom.... The house attached would be 1.1/2

furlongs from the mitta office and there may be about 70 houses in the intervening space... Item 7 in Ex. VIII (present suit properties) would be

1.1/2 miles from the mitta office.

From this evidence it certainly cannot be said that the requirements of Sub-rule (2) of Order 21, Rule 54 of the CPC have been fulfilled. There is

no evidence whatever, oral or documentary, that a copy of the order was affixed on a conspicuous part of the suit properties. There appears to be

some evidence that such an affixture was made on the house. But this in itself is not sufficient. When several properties are sought to be attached in

pursuance of an order of attachment, there must be proof of affixture on every one of the properties. It was laid down in Kommana Rukminamma

Vs. Talapanti Ramayya and Others, , that where there are several lots of property, an order of attachment affixed only to one such lot cannot be

deemed to be effective attachment of other lots of properties. In that case the decree-holder attached a house and 16 parcels of jeryoti lands in the

town of Ellore. There was a proclamation at the house and the affixture of the order of attachment on the building. The order was not posted upon

any of the lands. The learned Judges held that the mere proclamation of the attachment and the affixing of the order on the house was not sufficient

to effect a valid attachment so far as the other properties were concerned. This decision is direct authority on the facts of this case because though

it has been shown that there was an affixture of the order on the house, there is no proof of affixture on the suit lands.

Mr. Muthukrishna Aiyar contended that though there was no direct evidence of affixture of the order on the suit lands, a presumption could be

drawn in favour of the plaintiff u/s 114 of the Evidence Act, illustration (e), viz., that judicial and official acts have been regularly performed. u/s

114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the

common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. It is argued

that the plaintiff having obtained an order of attachment of several properties including the suit properties and having taken steps for the attachment

of the Iyan properties and the house in the mitta village, it is not probable that he would have neglected to take the required action in respect of the

suit house alone. It is also urged that there is evidence here that a prohibitory order was issued in respect of the suit properties also and the warrant

of attachment was brought to the village by the amin and in fact in respect of one of the properties in the schedule to the warrant there was an

affixture as required by law. It may therefore be presumed, so the argument ran, that there was an affixture on the land also.

Before dealing with some of the decisions relied on by Mr. Muthukrishna Aiyar for drawing the presumption aforesaid, it appears to be

important to bear in mind, the distinction between two things. It is true that illustration (e) to Section 114 of the Evidence Act declares that judicial

and official acts may be presumed to have been regularly performed. But it does not say that it may be presumed that any particular judicial or

official act has been performed. No doubt when the only evidence is that a particular judicial or official act has been performed and there is no

other evidence on record, it may be presumed that that particular judicial or official act was regularly performed. But when the dispute is whether a

particular judicial or official act. was performed or not, I think, there is nothing in law which enables a Court to presume that that act was as a

matter of fact performed. The question here is whether there was any affixture at all of the order of attachment on the property. If there were any

reliable evidence as to that fact, I quite agree that it may be presumed, in the absence of evidence to the contrary, that the affixture was properly

made. But I do not think that it is permissible to decide the question in dispute entirely on a presumption. There is nothing in any of the decisions

cited by Mr. Muthukrishna Aiyar to lead me to a contrary view.

I may also say that it is not obligatory on the part of the Court to draw a presumption always. The language of Section 114 of the Evidence Act

itself indicates that the presumption must be drawn in relation to the facts of the particular case. A Court may refuse to draw the presumption to

assist a party like the plaintiff in the present case who comes to Court long after the material evidence necessary to establish his case had ceased to

be available and then seeks to rest his case entirely on presumptions. It will be unfair to the other party who would be unable to rebut the

presumption which the plaintiff asks the Court to draw because owing to the plaintiff''s conduct in bringing the suit after a long delay, the material

evidence is no longer available.

The only decision cited by Mr. Muthukrishna Aiyar as strongly supporting him and which requires consideration is the ruling of the Privy Council

in Mohammad Akbar Khan v. Musharaf Shah (1934) 67 M.L.J. 641 : 1934 L.R. 61 IndAp 371 : ILR 15 Lah. 836 (P.C.). In that case the

appellant obtained from the Revenue Court a prohibitory order restraining the debtor from transferring the property in the annexed schedule by

sale, gift or otherwise. The question was whether an attachment of certain lands included in the schedule followed the order of attachment. The

Judicial Commissioner of the North-West Frontier Province held that the attachment had not been proved because there was no direct evidence

that a copy of the order of attachment was affixed in the Collector''s office. Their Lordships of the Judicial Committee held that as there was

evidence aliunde that the land was attached, it ought to be presumed, in the absence of any evidence to the contrary, that all necessary formalities

were complied with. They held likewise with reference to a subsequent prohibitory order with reference to which they say as follows:

Here again the Judicial Commissioner has held that because there is no direct evidence of the fixing of a copy of the order of attachment in the

Collector''s office, there was no valid attachment at all....In their Lordships'' judgment there was ample evidence of an attachment and in the

absence of direct evidence to the contrary it must be presumed that all formalities were duly complied with.

I do not think that Mr. Muthukrishna Aiyar can rely on the decision in this case as an authority in his favour. The Privy Council did not lay down

that in the absence of any evidence whatsoever that a judicial or official act was performed, it is permissible for the Court to presume that such an

act was performed. On the other hand their Lordships take care to expressly say in both places that there was evidence that the land was attached.

They refer to the report of the attaching officer that the lands were attached. What was lacking was direct evidence of the affixture of the copy of

the order in the Collector''s office. This decision therefore cannot help the appellant.

The evidence in this case to my mind clearly shows that there was no affixture on the lands. The plaintiff speaks only to an affixture in the mitta

office. The amin speaks to an affixture on the house. There is therefore evidence of persons who had knowledge of the attachment proceedings

and that evidence so far as it goes is clearly contrary to the facts alleged by the plaintiff. This is not a case in which a presumption could be drawn

in the plaintiff''s favour.

As already mentioned it was on account of the plaintiff''s delay that the best evidence is not available to the Court. He purchased the property in

1933 and it has now been found that ever since this purchase he has not been able to secure possession. Nevertheless, he filed the suit only in

1940, nearly seven years after his purchase, by which time the relevant record has ceased to be available.

As pointed out by the Full Bench in Sinnappan alias Hetharmamana Rowther Vs. Arunachalam Pillai and Others, , ""the essence of an order for

attachment is to prohibit the judgment-debtor from transferring the property and until such a prohibition is proclaimed and made known in the way

provided by the rule it cannot be said to have come into operation."" It is so because Section 64 of the CPC affects adversely even the rights of

transferees for consideration and it is necessary to protect the interests of such transferees that the fact of attachment should be made known by

following the procedure laid down by the Code.

The lower appellate Court was right in holding that the plaintiff has failed to prove that there was a valid attachment of the suit properties. The

second appeal therefore fails and is dismissed with costs of respondents 1 and 2.

Leave refused.