Padmavathi Ammal vs M. Maruthachalam Pillai and Others

Natesan, J.—This appeal is against the judgment of the learned Subordinate Judge of Ootacamund, dismissing the Plaintiff''s suit, wherein

was claimed inter alia relief of declaration of Plaintiff''s title to the suit properties, and possession and mesne profits The appeal raises the interesting

question as to when an attachment of immovable property could be said to have been made to make void a private alienation of the property u/s

64 of the CPC and whether all the requirements of Order XXI, Rule 54 of the CPC as amended in this State have to be complied with for the

attachment to have the effect of invalidating private sales. The question does not present much difficulty, and as we see it, is covered by a catena of

decisions of this Court and other Courts, all requiring punctilious adherence to the requirements of Order XXI, Rule 54 of the Code of Civil

Procedure. As learned Counsel appearing for the contesting Respondent sought to distinguish particularly the decisions of this Court and draw a

line of distinction as to mandatory and directory provisions in procedure, we shall examine the question a little more in extenso-than will be strictly

necessary.

We shall first discuss the material facts and findings on which there is-contest and which now survive for consideration. The suit property is a

bungalow known as Lansdowne, bearing door No. 284 with outhouses bearing; door No. 285 with sub-divisions therein, in Ward No. 12 within

the municipal limits of Ootacamund, situated in R.S. No. 3688, of an extent of 4 acres and. 15 cents. The second Defendant in the suit, out of

which this appeal arises, was the admitted owner of the property, and the Plaintiff, the Appellant herein, claims the property under a conveyance in

her favour, dated 19th. October 1956, evidenced by the registered sale deed, exhibit A-10 for a consideration of PvS. 15,000. The first

Defendant in the suit, who is the contesting; first Respondent in this appeal hereinafter referred as Respondent is a money decree-holder, who

obtained a decree against the second Defendant on 11th April 1956 for a sum of Rs. 3,046 in Original Suit No. 10 of 1956, on the file of the

Subordinate Judge''s Court, Ootacamund, the second Defendant herein being the fourth Defendant in that suit. Pursuant to the decree, the first

Defendant claims to have attached the property in E.P.R. No. 329 of 1956, the attachment being effected on 4th August 1956, and purchased the

property in Court auction on the said attachment on 3rd February 1958 for Rs. 12,005. The sale was confirmed in the usual course on 7th March

1958, exhibit B-6 dated 7th March 1958, being the sale certificate. As the property was in the possession of tenants, who in fact, had attorned to

the Plaintiff and were paying rents to her, the first Defendant secured symbolic delivery of the property. There was obstruction against delivery,

when the Plaintiff came to-know of the delivery proceedings, and the Plaintiff came forward with this suit after the petition filed by her to accept her

obstruction, Execution Application No. 231 of 1958, was dismissed. While in the pleadings the Plaintiff had attacked the decree which the first

Defendant had obtained against the second Defendant as fraudulent and collusive, and the first Defendant attacked the sale in favour of the Plaintiff

as not genuine or supported by consideration now before us, no serious argument was attempted by either party on these aspects.

The trial Court has found that consideration passed for the sale in favour of the Plaintiff and, in fact, has given a decree against the second

Defendant for a sum of Rs. 16,250, while dismissing the suit against the first Defendant. There is evidence to show that the Plaintiff''s father, who

has given evidence as P.W. 6, was in charge of the negotiations for the purchase of the property in favour of the Plaintiff, that Messrs. Mathew &

Mathew, Advocates, Ootacamund, advised them with reference to the purchase and that on the purchase the Plaintiff entered into possession, the

tenants on the property attorning to the Plaintiff. R.F. Stoney, a retired Chief Engineer, who has been a tenant of the property for over twenty-four

years, has given evidence as P.W. 1. He had been paying rents direct to the Plaintiff by cheque and for a period through Messrs. King and

Partridge, a firm of solicitors at Ootacamund. It has not been made out that the property had been sold at any undervalue to excite the suspicion of

the Court. In fact, at the Court auction the first Defendant had purchased it for Rs. 12,005, and the suggestion that was made to P.W. 6, the

Plaintiff''s father, in cross-examination was that the sale was with an agreement for a reconveyance. This of course, has been denied. It may also be

noted that in these proceedings the sale has not been attacked as one in fraud of creditors coming u/s 53 of the Transfer of Property Act. The

contest between the parties, and the only question for consideration, is -whether the conveyance in favour of the Plaintiff is void u/s 64 of the Code

of Civil Procedure.

The learned Subordinate Judge has not made any distinction as to the proceedings relating to the attachment and the proceedings relating to the

actual sale. The Plaintiff, in the plaint, had questioned the very factum of attachment. It was pleaded that the properties were never, in fact,

attached; no affixture was made, nor any beat of drum as required by law at or near the property. Her case is that, notwithstanding, the absence of

a regular attachment, the records have been manipulated by fraud and collusion as if there was perfected attachment. As regards the sale also it

was pleaded that there was no-publication and proclamation of the execution sale in or about the property as required by law. The first Defendant,

in his written statement, countered by stating that all the formalities for getting attachment had been observed by the amin. While in the plaint,

mistakes in the amin''s report as to the property attached were pointed out and particularly that the property attached was stated to be in Ward

No. 7, whereas the suit property was in Ward No. 12, in the written statement it was stated that it was false to state that the report mentioned that

the property in Ward No. 7 had been attached. The first Defendant of course, affirmed the regularity of the proceedings relating to the Court

auction sale. Issues in respect of these contentions, viz., Issue Nos. 2 and 3, run as follows:

Are the decree, attachment and sale in O.S. No. 10 of 1956 not binding on the Plaintiff ? Are they vitiated by fraud, collusion and irregularity ?

Whether the properties had been attached in O.S. No. 10 of 1956 of the Subordinate Judge''s Court, Ootacamund ?

On these issues, after upholding the validity of the decree which had been obtained against the second Defendant, the learned Subordinate

Judge held that he had no hesitation in finding that the attachment and sale proclamation and ergo the sale in pursuance of these are vitiated by

irregularity. The learned Subordinate Judge observed that the reference to Ward No. 7 in the amin''s report instead of Ward No. 12 may be

condoned, as also the misdescription relating to the door numbers. The learned Subordinate Judge referred to the absence of affixture of the order

of attachment in the municipal office as required under the Madras amendment and observed that this lacuna could not be overcome and so gave

his finding as to the irregularity of the attachment. It may here be pointed out that with reference to the case of the Plaintiff that there was no torn -

torn or affixture on the property, apart from referring to the evidence of the parties, there is no specific analysis of the evidence and a clear finding,

though it may be implied by the ultimate finding that the learned Subordinate Judge was inclined to hold that there was tom-tom and affixture at the

property.

For effecting attachment of immovable property under Order XXI, Rule 54 of the Code of Civil Procedure, as amended in Madras u/s 122 of

the Code of Civil Procedure, there has to be 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. This order has to be proclaimed as provided in sub-Clause (2) of Rule 54. It must

be (a) proclaimed by beat of drum or other customary mode at some place on or adjacent to such property; (b) a copy of the order must be

affixed on a conspicuous part of the property; (c) a copy shall be affixed on a conspicuous part of the Courthouse; (d) if the property is land,

paying revenue to the Government, a copy of the order has to be affixed in the office of the Collector of the district where the land is situated; and

(e) where the property is situated within the limits of a municipality, a copy of the order should be affixed in the office of the municipality also.

Now, in this case, the Plaintiff has denied the proclamation of the attachment order by beat of drum or other customary mode at or near the

property. The Plaintiff has denied also affixture on a conspicuous part of the property, and affixture in the office of the municipality. So far as

affixture in the office of the municipality is concerned, it is not contended before us that there was such affixture. The amin''s return of attachment

does not show it, and the amin who carried out the attachment has admitted that he did not affix the order in the municipal office. About the

absence of tom-tom and affixture on the property we have, on the Plaintiff''s side, the evidence in particular of P.Ws. 1 and 2. P.W. 1 Mr. Stoney,

is a retired Chief Engineer of the P.W.D., who has been on the property for over twenty-four years. At the time of giving evidence he was eighty-

three years old. According to him, he did not see any amin coming to the property to attach it. He is positive in his recollection that he was in his

bungalow in Ootacamund on 4th August 1956, the date on which, according to the first Defendant and the amin, tomtom was made and the order

copy affixed on the property. This witness admits that in 1958, a notice was found pasted in the front door of the bungalow. That, of course,

relates to the proclamation of sale. For his recollection as to the absence of affixture of attachment order and tom-tom he relies on a diary which he

maintained where, according to him, he noted down anything particular. It shows that on 5th April 1958, he had gone to the club; on his return he

found the notice above referred to pasted on the front door. He had not seen any notice pasted on the door prior to that. He says that he was

interested in the purchase of the property. According to him, if anybody had come he would have known, or his servants would have brought it to

his notice. Whenever he went to the club he states he made a note of it in the diary. Even so, if he went to the golf club or for shooting he would

make a note of it in the diary and there was no entry in his diary on 4th August 1956. P.W. 2 is the driver of P.W. 1 who had been with him for

thirty-six years. He was residing in an outhouse of the bungalow and he was with his master in the bungalow always except when he went out for

meals, being practically his secretary. He deposes that if there was tom-tom he would have known it. He states that even if he was not at home, his

wife or any member of his family would inform him. In his cross-examination P.W. 2 was asked whether A.M. Yussuf, Rasheed and Nanjundiah

did not reside at Finger Post, the locality where the suit property is situated. To a question in cross-examination with reference to these people, he

has stated, if they have attested to any tom-tom made there, I cannot say why they have attested to such a report. It has been elicited in his re-

examination that these persons reside about a furlong from the bungalow. The importance of this piece of evidence lies in this, that in the amin''s

report, exhibit B-l, these persons figure as attestors, but not one of them has been examined. Absolutely no explanation is given for their non-

examination. The amin, who was entrusted with the warrant for effecting the attachment, has given evidence as D.W. 1. He states that the attestors

to his effecting the attachment are of the locality and all of them reside at Finger Post. He says that one or two of them were residing in the

property attached and were Muslims, but cannot point them out in exhibit B-l, the return of the warrant. According to him, he effected the

attachment in Ward No. 7. The present first Defendant, the Plaintiff in the suit in which execution was being levied, is stated to have accompanied

him and identified the property. The first Defendant''s name is also to be found as a signatory to the amin''s report exhibit B-l under the attestors.

But the first Defendant has not gone into the witness box. Only his son has given evidence as D.W. 6. The amin does not speak about the presence

of the son at the time of the attachment In the return of the warrant of attachment, according to the amin, he went inside the gate to the main

building and affixed a copy of the order of attachment to the outer door of the bungalow. He saw door No. 285 only which of course, refers to the

outhouses. He admits that he did not note the door number of the main building. The Commissioner appointed in this suit in his report has stated

that the main building with the garage block adjoining it is door No. 284 in Ward No. 12 and that the door number is found painted in two places

on the main building. While erroneous door numbers in the warrant of attachment or return may not be of material importance when there is no

question about the identity of the property attached, the answers given by the witness (D.W. 1) throws doubt about his having been on the

property. He says that he did not see any servant of Mr. Stoney the tenant of the bungalow. In the property there are two outhouses, garage,

servant''s quarters, stable, godowns, etc. In the outhouses and stable several persons reside. D.W. 1 would say that he did not remember whether

there was any servant at the back of the house. D.W. 2 is the person who is stated to have beat tom-tom. He also speaks to the signatures of

attesting witnesses being taken at the time of the attachement, and affixture of the notice on the bungalow. This witness would state that, besides

the first Defendant, his son also. was there at the time of the attachment. According to him, Mr. Stoney was not there and the house was closed.

The attachment was at about 11 a.m. D.W. 6 is the son of the first Defendant, whose presence at the time of the attachment is not spoken to by

the amin. According to D.W. 6 there was nobody on the property at the time of the attachment. He speaks to tomtom and affixture of notice and

people being present at the time of the attachment. As adverted to earlier, there has been no critical analysis of the evidence relating to the tom-tom

and affixture of notice by the learned Subordinate Judge and no proper appraisal of the evidence in the light of probabilities and the facts as emerge

from the evidence of the witnesses. When the question is whether there has been tom-tom and affixture, and evidence has been adduced, there is

no question of relying upon any presumption u/s 114 of the Evidence Act. Presumption is only as to the regularity of an official act which is proved

to have been performed. The presumption does not come in when there is no evidence that the act has been performed, or the evidence that is let

in does not warrant an inference of performance. As observed in Murugappa Chettiar Vs. Thirumalai Nadar and Others, by Rajamannar J., as he

then was:

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 was 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.

As noticed in the same decision, it is not obligatory on the part of the Court to draw a presumption always. As Burn J., noticed in Noor

Mahomed Mohideen Pillai Taragan and Another Vs. Pechi Ammal, , the report of the Court amin that I have attached will not be sufficient to

presume that everything needful to effect a valid attachment must have been made. To the same effect is the decision in Lala Hira Lal v. Munshi

Jagatpati Sahai (1928) ILR Pat. 1. In the face of the categorical denial of P.Ws. 1 and 2, whose evidence we see no reason to reject, it is difficult

to hold on the inconclusive testimony of D.Ws. 1. and 2 that there has been tom-tom and affixture on the property. A reading of the evidence of

the amin leads one to suspect whether at all he had been in the neighbourhood. If he had been on the property he must have seen the number of the

bungalow shown in two places, according to the Commissioner. Again, the Defendant, who has referred to attesting witnesses and questioned

P.W. 2 about the residence of these witnesses in the locality, have not chosen to examine them. The first Defendant himself, whose signature is

found on the amin''s return of attachment, does not go into the witness box, and only his son speaks about the attachment. Again, there is

discrepancy as to the ward in which the attachment was effected. The amin says that he effected the attachment in Ward No. 7. The property is

admittedly in Ward No. 12, and that is also the report of the Commissioner. In these circumstances, we are unable to hold that there has been

proclamation of the order of attachment by beat of drum at some place on or adjacent to the property or affixture of the order on a conspicuous

part of the property as required under Order XXI, Rule 54(2) of the Code of Civil Procedure. We have, therefore, this, that of the requirements to

perfect an attachment under Order XXI, Rule 54, three of them are wanting : (i) beat of drum at or about the property; (ii) affixture of the order on

a conspicuous part of the property; and (iii) affixture of the order in the office of the municipality.

Now, the question is whether these defects are fatal to the attachment as to rule out the applicability of Section 64 of the CPC to the transfer in

question. While proceedings in execution of a money decree are pending, no right to immovable property is directly or specifically in question. It is

only when an attachment is effected, it operates as a valid prohibition against alienation of the attached property making void the alienation against

claims enforceable under the attachment. Section 64 of the CPC runs thus--

Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the

judgment-debtor of any debt dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the

attachment.

Explanation.--For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

For the interdiction against alienation to have effect and invalidate private transfer of the property, the requirement is that the attachment must

have been made. The question is when an attachment could be said to have been made. Order XXI, Rule 54 of the Code of Civil Procedure,

which has been already-referred to, gives the procedure for attachment of immovable property. As amended in Madras, it runs thus--

Ride 54.--(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 A copy of the order

shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house. Where the property is land paying revenue to

the Government, a copy of the order shall be similarly affixed in the office of'' the Collector of the district where the land is situated. Where the

property is situated within the Cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the military

estates officers concerned, and where the property is situated within the limits of the Municipality, in the office of the Municipality within the limits

of which the property is situate.

(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the

date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of

attachment, or the date on which the order was duly proclaimed under Sub-rule (2) whichever is earlier.

Obviously, for Section 64 of the CPC having the effect, the mere fact that an order of attachment has been passed is not sufficient! The

requirement of Section 64 is that an attachment should have been made. The leading case, which, in our view, is decisive of the matter, is the

decision of the Privy Council in Muthiah Chetti v. Palaniappa Chetti (1928) ILR Mad. 349, 355 (P.C.). That was no doubt, a case arising under

Article 11, Schedule I of the Limitation Act. But the principle, applicable is the same, whether it be under Article 11 or for purposes of Section 64

of the Code of Civil Procedure. Article 11 prescribed a period of one year from the date of the order in a suit by a person against whom an order

under the CPC has been made on a claim preferred to or an objection made to the attachment of property attached in execution. The question for

consideration naturally was when was the property attached in execution. Lord Shaw, who delivered the judgment of the Board, after referring to

the fasciculus of clauses beginning with Rule 41 of Order XXI of the Code of Civil Procedure, prescribing various modes of attachment according

to the kind of the property to be attached, observed--

These instances go to show that under the CPC in India the most anxious provisions are enacted in order to prevent the mere order of a Court

from effecting attachment and plainly indicating that the attachment itself is something separate from the mere order and is something which is to be

done and effected before attachment can be declared to have'' been accomplished.

That which has to be done for accomplishing attachment of immovable property is clearly prescribed under Order XXI, Rule 54, and LORD

SHAW observes at page 56 of the report:

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 on the basis of this pronouncement of the Privy Council, that case after case has required the punctilious observance of the requirements of

the Code as to attachment for its having effect u/s 64 of the Code of Civil Procedure.

The argument of learned Counsel for the Respondents with reference to this decision of the Privy Council is that in that particular case there

was only an order for attachment and no further steps were taken. Learned Counsel submits that if some steps in pursuance of the order of

attachment had been taken, that would be sufficient, and it is not necessary that all the prescribed things must have been done. This overlooks that

the decision of the Privy Council sets out a general principles applicable to all cases and points out that before a property can be held to have been

attached, the other things prescribed by the rules in the Code should have been done. (Italics is ours for emphasis). After setting out this principle,

the Judicial Committee proceeds to consider whether the attachment took place in the case before them.

In Sinnappan v. Arunachalam Pillai (1919) ILR Mad. 844, 850 (F.B.) it was held that an attachment operated as a valid prohibition against

alienation of attached property only from the date on which the necessary proclamation was made and the copy of the order affixed as

contemplated under Order XXI, Rule 54 of the Code of Civil Procedure. In that case the Court had, ordered the attachment on 12th July, 1909;

warrant of attachment was issued on the 16th of July, 1909, and the actual attachment by means of proclamation and affixture of notice of the

attachment was made only on the 22nd of July 1909. In the meantime the judgment-debtor had sold the lands to the Defendant by a sale deed

executed on the 19th of July, 1909. Abdur Rahim offg. C.J., while giving the opinion of the Court, observed:

The object of Section 64 is to prohibit alienation after attachment, and, if the mere passing of an order in Court would have that effect, one can

easily imagine that the judgment-debtor would be in a position to make alienations to innocent purchasers to their prejudice. The essence of an

order of 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.

The object being to ward off innocent purchasers by adequate publication, the Code has provided for the dissemination of the purport of the

order to the widest extent possible. It has to be proclaimed at or about the property by affixture and beat of drum. If the property is within the

municipal limits affixture on the municipal notice board is evidently expected to bring the order of attachment to the notice of a number of persons.

Councillors will be frequenting the place. Citizens or clerks or servants will be frequenting The municipal office for purposes of payment of taxes,

securing licences approval of plans for building, etc. When Council meetings are held, the public also often gather there. In a village beat of drum

ordinarily attracts considerable attention; but in a municipal area it may pass unnoticed even in the neighbourhood. That may be one of the reasons

why in the Madras amendment, where the property is situated within the municipal limits affixtures in the office of the municipality is also insisted

upon. The prohibitive order of attachment, it may be noticed, is directed not only against the judgment-debtor but enjoins all persons from

accepting transfers from the judgment-debtor. It is a warning directed to the public. The material portion of Form No. 24, Appendix, E, in respect

of an attachment in execution runs thus:

...You are hereby prohibited and restrained, until the further order of this Court from transferring or charging the property specified in the Schedule

hereunto annexed, by sale gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, gift

or otherwise.

As the only mode of promulgation of the order for reaching the public is that provided in Order XXI, Rule 54, Code of Civil Procedure, the

notice to the public is really constructive. When third party purchasers could be affected and their transaction nullified on constructive notice of the

order of attachment any one of the steps in the procedure prescribed for giving that constructive notice must, in our opinion, be strictly adhered to

and punctiliously followed.

The view of the Full Bench in Sinnappan v. Arunachalam Pillai ILR (1919) Mad. 844, 850 (F.B.) if we may say so with respect, is clear and

emphatic that until a prohibition against transfer is proclaimed and made known in the way provided by the rule, the attachment cannot be said to

have come into operation.

In Murugappa Chettiar Vs. Thirumalai Nadar and Others, the order of attachment was procured in respect of several properties, some of them

suit properties, consisting of house and lands being in a zamin village. There was evidence of affixture only on the house; there was some evidence

of affixture in the mitta office; but there was no evidence to show that the copy of the order was affixed on the suit lands. After referring to the

observations in Sinnappan v. Arunachalam Pillai ILR (1919) Mad. 844, 850 (F.B.) above referred to, Rajamannar J., as he then was, observed:

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.

It was held in that case that by reason of the absence of affixture on the lands there was no valid attachment of the suit properties. A number of

cases have been referred to by learned Counsel for the Plaintiff, where for failure to affix in one or other manner as provided in the Code,

attachments have been held to be invalid. As we have no doubt about the position, we shall refer to a few of them only. In AIR 1925 583 (Lahore)

a decision of a division Bench of the Lahore High Court, the order was promulgated at the property and a copy of the order affixed in the court-

house, but there was no affixture in the office of the Collector of the district. This defect was held to vitiate the attachment and not attract the

provisions of Section 64 of the Code of Civil Procedure. It is observed that where the law laid down a definite procedure for the conduct of an

act, which was purely symbolical, the procedure must be strictly followed and any omission therein must be regarded as material.

In Lala Hira Lal v. Murshi Jagatpati Sahai ILR (1928) Pat. 1 already referred to above, there was evidence that the order of attachment was

proclaimed by beat of drum and that a copy of the order was affixed on a part of the property and also on a part of the court-house; but there was

absolutely no evidence that it was affixed in the office of the Collector. Therefore, it was held that there was no valid attachment and that the

Defendant could rely upon his transaction dated 21st April, 1920, even though a prohibitory order had been passed on the 23rd of March, 1920

and other requirements of Order XXI, Rule 54 had been carried out.

In Pokhpal Singh v. Kanhaiya Lal ILR (1946) All. 788, 800, the validity of an addition to Order XXI, Rule 54 made by the Allahabad High Court

u/s 122 of the CPC came up for consideration. The added rule provided that the attachment order.

Shall take effect as against purchasers for value and in good faith from the date when a copy of the order in affixed on the property, and against all

other transferees from the judgment-debtor from the date on which such order is made.

It will be seen that this amendment provides for the attachment taking effect in cases of transferees for value even if only a copy of the order

has been affixed on the property, whereas Clause (2) of Order XXI, RULE 54 requires besides affixture, the beating of drum, affixture in the

court-house and affixture in the office of the Collector. Noticing that Sub-rule (3) to Rule 54 did not require the full steps set out under Sub-rule

(2) for accomplishing the attachment, the Court held that the rule was repugnant to Section 64 of the Code of Civil Procedure, which avoided a

transfer only when the attachment had been made that, is to say, when all the steps required by the rules, as to proclamation and otherwise have

been complied with. In that case the purchaser had notice of the order of attachment. It was held that even this did not affect the position. Braund

J., observed--

And, finally, the effect of this line of reasoning which starts with the fact that an attachment has not been ""made"" until it has been proclaimed, is that,

until that moment arrives, there, is no completed adverse title of which the purchaser can have notice. All that he can possibly have notice of upto

that point is that steps are in progress from which ultimately a completed attachment may emerge. In other words, the judgment-debtor (sic. decree

holder) has not yet grasped the property as against the purchaser who, for value and in good faith, buys before he completes his hold of it. This

seems to me to be a perfectly logical result, since it would surely be inequitable that an honest purchaser should suffer from having notice of the

possibility of that which has not yet, and may never, actually, occur.

In Lachhmandas v. Rupchand AIR 1935 Lah. 37 it was found that the order had been, proclaimed by beat of drum in the village and a copy of

the order had been affixed in the village chavadi. There was no affixture of the copy on a conspicuous part of the property, and it was held that the

formalities prescribed by Order XXI, Rule 54 had not been fully complied with, and that, therefore, the aid of Section 64 of the CPC could not be

invoked.

In Bank of Chettinad v. Mating Hla Gyi AIR 1933 Rang. 267, in execution of a money decree, attachment of 400 baskets of paddy lying on

the threshing floor was applied for and ordered. There were three heaps of paddy sheaves; the decree-holder attached one heap of paddy

sheaves; he, however, failed to affix a copy of the warrant of attachment on the threshing floor. One Venkata-chalam Chettiar, who had

knowledge of the attachment proceedings, took all the paddy away as having been purchased by him prior to the attachment. The Court held that

the attachment had not been effected in the manner laid down in Order XXI, Rule 44 of the CPC and that therefore, Section 64 of the CPC did

not apply. It was contended there that even though the attachment had not been effected as provided under Order XXI, Rule 44 of the Code of

Civil Procedure, the claimant had notice of the attachment and that, therefore, he was estopped from pleading that the attachment was invalid.

After quoting from the decision of the Privy Council in Muthiah Chetti v. Palaniappa Chetti ILR (1928) Mad. 349 (P.C.), the Court proceeded

thus:

What is clear in the present case is as pointed out above, that a copy of the warrant of attachment was not affixed, as should have been, on the

threshing floor of the Respondents. Therefore the attachment, according to the decision of the Privy Council cited above, must be declared to be

invalid and that the transfer of the paddy in question was a valid transfer.

In our view, it is needless to further add to the citations. The weight of authority is all one way; the order of attachment is one thing, and it is the

promulgation of it in the manner privided under Order XXI, Rule 54 of the CPC that completes the attachment. The order is only the beginning and

not the end of the attachment and till there is proclamation of the order in the various ways as provided for, Section 64 of the CPC can have no

application. It is here that learned Counsel, Mr. Sundaram Iyer for the Respondent, contends that the directions as to the mode of attachment

under Order XXI, Rule 54 are directory and not mandatory, and that defects or failure to carry out one or the other of the steps will not vitiate the

attachment, or render it incomplete. Learned Counsel submits that neither in Muthiah Chetti v. Palaniappa Chetti (1928) nor in Sinnappan v.

Arunachalam Pillai ILR (1919) Mad. 844 (F.B.) the question arose for consideration as to the extent to which the provisions of Order XXI, Rule

54 must be complied with to perfect the attachment. Learned Counsel points out that in neither of the cases was any further step taken apart from

the issue of the prohibitory order and that therefore, there was no scope for consideration of the present point raised by him. Learned Counsel

would distinguish the decision in Murugappa Chettiar Vs. Thirumalai Nadar and Others, also as a case where, with reference to the particular

properties in question, there was no attempt at carrying out the steps as provided for under Order XXI, Rule 54(2). Reliance is placed by learned

Counsel on Dhiansingh v. Secretary of State for India in Council ILR (1945) Nag. 121 and the decision of the Orissa High Court in Ratha Harijan

v. Narasingha Rana AIR 1961 Orri 22. In our view in Dhiansingh v. Secretary of State for India in Council ILR (1945) Nag. 121 the question in

this form with reference to Order XXI, Rule 54 did not arise for consideration. There is no reference even to Muthiah Chetti v. Palaniappa Chetti

ILR (1928) Mad. 349 (P.C.) and Sinnappan v. Arunachalam Pillai ILR (1919) Mad. 844 (F.B.). In Dhiansingh v. Secretary of State for India in

Council ILR (1945) Nag. 121 an attachment before judgment of a book debt was sought. The attachment itself appears to have been properly

effected and no question was raised as to want of formalities in effecting the attachment. In fact, it was specifically observed that the attachment of

the debt was in terms of Order XXI, Rule 46(1) of the CPC and that the attachment treated as one in execution would be perfectly valid. The

challenge to the attachment was on the ground that the requirements of Order XXXVIII of the CPC as to attachment before judgment had been

overlooked, no notice having been issued to the judgment-debtor in terms of Rule 5 of Order XXXVIII. What had to be considered by their

Lordships, and was considered, was whether the non-compliance of the direction in Rules 5 and 6 of Order XXXVIII of the CPC invalidated the

attachment which had been effected or rendered it merely voidable at the instance of the owner of the property attached, that is, the judgment-

debtor. There was evidence to show that the judgment-debtor had acquiesced in the attachment. It was pointed out therein that Rule 5 of the

Order XXXVIII of the CPC was intended for the protection of the person whose property is sought to be attached before judgment and that if he

did not receive notice required by law and was consequently denied the privilege of staving off the attachment by the offer of security, he had

remedy by way of appeal. Emphasis was laid on the fact that the person affected in that case did not care to take recourse to that remedy, and

acquiesced in the order. This decision does not decide the question as to when an attachment gets perfected. As the Court had jurisdiction to

order an attachment before judgment, it was held that the order of the Court would prima facie be regarded as valid and operative unless it was set

aside in the manner provided by law by the party prejudicially affected by it. The subject of consideration in that case was not as to the mode in

which attachment had to be affected. Reference was made to Section 99 of the CPC which provides that no decree is to be reversed or

substantially varied for any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the

Court, and read with Section 141, the principle was held to apply to the order of attachment in question. No doubt, in Ratha Harijan Vs.

Narasingha Rana and Others, , with reference to the mode of attachment, it was observed that even if there were omissions in the matter of

observing the formalities in making the attachment, the attachment was not invalid; and for this, reliance is placed on the decision in Dhiansingh v.

Secretary of State for India in Council ILR (1945) Nag. 121. In this case, actually on the merits, there was a finding based on oral and

documentary evidence that the attachment was made on the spot that a copy of the writ of attachment was affixed on a conspicuous part of the

property and that proclamation was made by beat of drums. Regarding the other requirements under Order XXI, Rule 54 of the Code of Civil

Procedure, there was no positive evidence that they were not followed and the Court held that the question of the attachment being invalid on

account of the non-compliance with certain procedure laid down by Order XXI, Rule 54 of the CPC did not arise. In the circumstances, in our

view, the observations in Tatha Harijan v. Narasingha Rana AIR 1961 Orissa 22, that even if there were omissions in the matter of observing the

formalities in mating the attachment, the attachment was not invalid, are obiter and not of assistance to the learned Counsel for the Respondent.

Mr. Sundaram Iyer, learned Counsel for the Respondent, drew our attention to the following passage in Maxwell on Interpretation of Statutes

(eleventh edition, page 369), which has been relied on in Dhiansingh v. Secretary of State for India in Council ILR (1945) Nag. 121.

On the other hand, where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in

neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, wit hout

promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and

government of those on whom the duty is imposed, or, in other words, as directory only.

This principle may be relevant in the context of that case but in our view this has no application when we are concerned with the observance of

procedure formalities, where rights of persons, particularly third parties, would be affected. The following observations in Maxwell would, in our

opinion, govern the position. At page 368 the learned author observes:

The same imperative effect seems in general presumed to be intended even when the observance of the formalities is not a condition exacted from

the party seeking the benefit given by the statute, but a duty imposed on a Court or Public Officer in the exercise of the power conferred on him,

when no general inconvenience or injustice calls for a different construction.

The following passage in the same page in illustration of the above principle appears to us to be apposite to the question now in consideration.

An enactment which provided that every warrant issued by a Court should be under its seal was equally imperative, and not only was the

commitment under an unsealed warrant invalid but the person who had obtained it without taking care that the Court performed its duty or sealing

it was held liable in damages to the person arrested under it. This was hard on the former bit it was essentially for the latter that the order should be

duly authenticated.

As to whether a provision in a statute is mandatory or merely directory, no universal rule can be laid down, and the Court will have to get at

the real intention of the Legislature by carefully considering the whole scope of the provision, the object intended and its effect on the rights of

parties. In The Collector of Monghyr and Others Vs. Keshav Prasad Goenka and Others, , Rajagopala Ayyanger J., delivering the judgment of

the Court, observes:

It is needless to add that the employment of the auxiliary verb ""shall"" is inconclusive and similarly the mere absence of the imperative is not

conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific

provision which, for instance sets out the consequence of the omission to observe the requirement, but on the purpose for which the requirement

has been enacted, particularly in the context of the other provisions of the Act and the general schema thereof. It would, inter alia, depend on

whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might

involve.

In The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, , Subba Rao J., sets out the principle thus:

When a statute uses the word shall prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully

attending to the whole scope of the statute.

Now with reference to every one of the steps to be taken under Order XXI, Rule 54(2) the language used is imperative. The Legislature has

made no distinction between one step and another and all of them are aimed at the same purpose. The object of the provision as pointed oat in

more than one case vide the observations in Sinnappan v. Arunachalam Pillai ILR (1919) Mad. 844 (F.B.) and Murugappa Chettiar Vs.

Thirumalai Nadar and Others, is to protect bona fide transferees from the penal provisions of Section 64 of the Code of Civil Procedure. To adopt

with respect the language of Rajagopala Ayyangar J., in The Collector of Monghyr and Others Vs. Keshav Prasad Goenka and Others, the

requirements are insisted upon as protection for safeguarding of the right of property. As noticed already, an attachment not only prohibits the

judgment-debtor from transferring his properties, but there is an interdiction against the public generally from taking benefit under any transfers

from the judgment-debtor. Any purchaser for consideration however bona fide and even though he be totally unaware of the attachment would,

after attachment had been made of the property, take it subject only to the claims enforceable under the attachment. There is an embargo on the

acquisition, and enjoyment of property after an attachment, even though there may be no actual notice of the attachment, notice being constructive

only, to be inferred from the promulgation of the order of attachment as provided for under Order XXI, Rule 54(2). This is a restriction on the

fundamental rights in property; it may be reasonable in the context; but as in all restrictions its application must be strictly within the letter of the law.

Referring to an analogous provision in the old Code of Civil Procedure, Section 276, Muhamood J., in Ganga Din v. Khushali ILR (1885) All.

702, 707. observed thus:

Now, it is clear to my mind that Section 276 is a distinct interference with private rights of alienating property, and I believe it is a fundamental

principle relating to the interpretation of statutes, that where the Legislature interferes in this manner, the provisions enabling it to do so must be not

only carefully but strictly construed.

We have, therefore, no hesitation in concluding that the requirements of Order XXI, Rule 54(1) and (2) are mandatory and every one of the

prescribed things must be done before an attachment could be said to have been made for Section 64, CPC to come into operation.

We fail to see on what principle a distinction could, be made between one requirements and another to hold that compliance with some only of

the requirements of Order XXI, Rule 54(2) would be substantial compliance with the provisions of the rule and could be held to perfect the

attachment. The Legislature has made no distinction between the several requirements and the language, as already noticed, with reference to every

one of the requirements, is imperative. The argumentum ab inconvenienti does not appeal to us. Procedural rules are enacted to be observed, and

we fail to see why we should condone laches. If breaches are permitted and Courts have to go into the question as to what effect it had on the

publication, actual or constructive, then room is given for difference of outlook and opinion and endless proceedings in execution which are already

generally protracted.

We have to sound a note of caution that the view we take is not in conflict or in any way inconsistent with the case law holding that breach of

rules in execution relating to attachment and sale does not ipso facto invalidate or vitiate the sale. The statute itself has provided, remedy for such

breaches by an application for setting aside the sale under Order XXI, Rule 90, CPC on proof of substantial injury. It has been held that

attachment is only a necessary preliminary to a judicial sale, but that even a sale without attachment is not a nullity, the omission to attach being only

a material irregularity rendering the sale to be set aside under Order XXI, Rule 90 if substantial injury is proved. These are matters arising between

the decree-holder and auction purchaser or judgment-debtor. But different equities and rules have to be applied when an alienee from the

judgment-debtor prior to the perfected attachment comes on the scene. It is only a regularly perfected attachment that would attract the operation

of Section 64. Therefore the cases under Order XXI, Rule 90 where omissions to affix the sale proclamation as provided for under Order XXI,

Rule 54 read with Order XXI, Rule 67 have been held to be only material irregularities have no relevance to the matter under consideration. We

may also add that once it is established that the several steps as required under Order XXI, Rule 54(2) have been in fact taken, a presumption can

be made as to the regularity of the steps proved to have been taken.

In this case we have held that it has not been established that there was even affixture and beat of drum at or about the property in question.

Admittedly there has been no affixture in the municipal office. Assuming that on the evidence one can come to the conclusion that there has been

beat of drum at or about the property and affixture of the order on the property the absence of affixture in the municipal office, an equally

imperative requirement, by itself would vitiate the attachment and render unavailable Section 64, Code of Civil Procedure.

Once it is held that a legally perfected attachment is an essential requisite for the operation of Section 64, the question whether the alienee had

notice or not of the decree or of the execution proceedings would be of little consequence. A mere notice will not complete and legalise an

imperfect attachment--vide Galabhai Lallubhai v. Kika Jivan ILR (1929) 53 Bom. 851, Pokh Pal Singh v. Kanhaiya Lal ILR (1946) All. 788 and

Bank of Chettinad v. Maung Hla Gyi AIR 1933 Rang. 267. But knowledge of execution proceedings may affect the private purchaser under other

principles of law. The transaction may get suspect and liable to be impeached u/s 53 of the Transfer of Property Act. But even if knowledge of the

purchaser can have any relevancy, in this case there is no evidence to warrant an inference that the Plaintiff had notice of all the proceedings for

attachment of the property in question. No doubt the learned Subordinate Judge in one part of his judgment holds that the Plaintiff must have been

aware of the decree and execution proceedings. All the same at the end while granting a decree against the second Defendant, the learned

Subordinate judge would observe that it was not possible to agree that the Plaintiff had purchased the property in spite of the decree in Original

Suit No. 10 of 1956 and execution proceedings connected therewith against the suit property. The learned Subordinate Judge comments that the

second Defendant had not chosen to examine himself to maintain his version that the Plaintiff purchased the property for a lesser sum knowing of

the decree, attachment, etc, In the earlier part of the judgment the learned Subordinate Judge has rejected the evidence of D.W. 6 who speaks to

the knowledge of the Plaintiff by deposing that the Plaintiff''s father had approached the first Defendant to settle the decree in Original Suit No. 10

of 1956; but curiously from the averments in the plaint questioning the bona fides of the decree against the second Defendant it is concluded that

the Plaintiff and her father must have been aware of the proceedings. The learned Subordinate Judge overlooks that the plaint allegations are based

on knowledge subsequently acquired. According to the Plaintiff, it was only when there was an attempt by the first Defendant to take delivery of

the property and secure attornment letters from the tenants the Plaintiff came to know of the execution. Our attention has not been drown to any

tangible evidence on record from which an inference could be made that the Plaintiff or her father was aware of the proceedings for the attachment

of the property in question. The Plaintiff had parted with the full consideration for the purchase. It has not been shown to be a speculative

purchase. She had the benefit of legal advice in the transaction and if in fact she or her father who was in charge of the transaction had knowledge

of the decree, as deposed to by the Plaintiff''s father, the purchase would not have been made.

30.1 Learned Counsel for the Respondent referred to the fact that there was prior attachment of this property by this very Plaintiff in Original Suit

No. 55 of 1953 on the file of Sub-Court, Ootacamund evidenced by exhibit B-7. But admittedly the property was not sold under that attachment

and the attachment was raised on 27th March 1957. As observed in Nana Rao v. Arunachalam Chettiar ILR 1940 Mad. 526.

an attachment effected after a private alienation is not assisted by attachment before the alienation.

As regards the applicability of Section 47, CPC once it is held that Section 64 does not affect the Plaintiff''s purchase the title of the Plaintiff is

paramount and Section 47, CPC can have no application. The sale in favour of the Plaintiff had been effected before a valid attachment and the

Plaintiff is not bound by the subsequent proceedings leading to the sale in favour of the decree-holder. An execution sale can pass only the right,

title and interest of the judgment-debtor. The decision in Venkatachalapathi Rao v. Venkatappayya (1931) ILR 55 Mad. 495, 503 relied upon by

learned Counsel for the Respondent can have no application in the instant case. In that case subsequent to an interim order of stay of execution

granted in an appeal without notice to the decree-holder but before the communication to the Court of first instance, an order of attachment was

made. Further proceedings by way of actual attachment took place and, as noticed in page 502 of the report, the proceedings by way of

attachment of the properties in dispute took place in a Court of competent jurisdiction. The interim stay order was later vacated and pending

proceedings by the judgment-debtor questioning the validity of the attachment, third parties purchased the properties from the judgment-debtor.

While the District Munsif and the Subrodinate Judge on appeal therefrom concurred in quashing the attachment proceedings this Court in

Venkatachalapathi Rao v. Kameswaramma (1919) ILR Mad. 151 (F.B.) upheld the validity of the attachment.

In those circumstances it was held that prima facie the third parties must be taken to have purchased subject to the result of the execution

proceedings and the principle of lis pendens would apply to such case. Proceeding their Lordships observed:

If for any reason the proceedings that were had relating to the properties in question prior to the Plaintiff''s purchase should prove abortive and

infructuous, and the decree-holder had to take entirely fresh execution proceedings after the Plaintiff''s purchase, then there would be force in the

Respondents contention that such fresh execution proceedings would not be binding on them unless they wore made parties to the same. On the

other hand, it is not open to a party to a proceeding to nullify the effect of proceedings already properly taken with reference to that property by

transferring the same to strangers.

32.1 There was perfected attachment in that case and the question that arose for consideration was as to the validity of the proceedings in view of

the interim order of stay. That case can have no application when here the Court finds as a fact that there was no perfected attachment. Of course,

if we had found in this case that attachment was in order, the Plaintiff would be bound by the execution proceedings and Section 47, CPC would

apply.

In the result the Plaintiff has to succeed. Her title is declared and reliefs granted as prayed for. The property will be re-delivered to her.

The Plaintiff has prayed for mesne profits from 5th April 1958 till the date of the suit and pendente lite. The learned Subordinate Judge has

discussed the quantum of profits under issue 9. It is not clear from the discussion whether in assessing the profits on the basis of rents, deduction

was made in respect of taxes. There is no evidence as to who paid taxes. The learned Subordinate Judge himself remarks that neither P.W. 5. nor

D.W. 6 has adduced sufficient evidence to show that the income of the suit properties is as much as stated by them. In the circumstances we

cannot accept the finding of the learned Subordinate Judge as to the quantum of profits. In the absence of acceptable evidence as to profits

accrued from 5th April 1958 till the date of the suit, we disallow the claim for past mesne profits. For mesne profits pendente lite from the date of

the institution of the suit the Plaintiff is relegated to proceedings under Order XX, Rule 12, Code of Civil Procedure. As the suit is being decreed

against the first Defendant, the decree claimed by the Plaintiff in the alternative against the second Defendant has to be and is hereby set aside.

So far as the costs of the action are concerned, this is a fit and proper case where the second Defendant should pay the costs of the Plaintiff

and first Defendant both in the trial Court and in this Court. There will be a decree accordingly against the second Defendant for the costs of the

Plaintiff and the first Defendant in both the Courts. As Defendants 3 to 6 disclaimed all interest in the suit, the dismissal of the suit as against them

will stand. The appeal against them is therefore dismissed. But as no relief has been claimed against them there will be no order for costs in their

favour.