Sadhu Prasad Sah vs Satnarain Sah and Another

Rowland, J.—This is an appeal by the plaintiff in a suit under Order 21, Rule 63. The plaintiff had a decree against Mr. H.L. Russel, defendant 2, in execution of which he sought to sell sixteen annas proprietary interest in village Hasanpur, Mahal Hasanpur, tauzi No. 2130 as being the property of his judgment-debtor. A claim was presented by defendant 1, Sitaram Sahu, alleging that he had bought the property from defendant 2 on 6th September 1926 by a deed of sale. The plaintiff''s case was that the said deed of sale was a farzi transaction and no title passed under it, the beneficiary ownership of the property still remaining with Mr. Russel. The plaintiff further contended that the property had been attached before judgment on an application by the plaintiff in the suit in which he obtained the decree which he is now seeking to execute. The claim was allowed by the Subordinate Judge and the present suit has been instituted because the plaintiff is not satisfied with that position. The substantial issues were whether, there was any attachment before judgment of this property in the plaintiff''s mortgage suit of 1924 and whether the sale deed executed by Mr. Russel in favour of defendant 1 is fraudulent and colourable and without consideration. Both these issues were decided against the plaintiff by the Subordinate Judge. Hence this appeal in which the same points are raised.

Mr. De for the appellant has pointed out that in his application for attachment before judgment (Ex. 2) a list of properties to be attached is annexed and No. 25 of the properties in that list is Mauza Hasanpur. The order sheet shows that the Court in general terms directed attachment of the properties specified in the application. The plaintiff was further ordered to file the talbana and notices, etc. duly filled in. In pursuance of this order writs of attachment were issued and they with the reports of service are Exs. 1 and 3. Ex. 3 is the service of a writ issued through the Civil Court nazarat and served by a Civil Court peon. The list of properties annexed to this service return has not been printed'' but at the hearing we were referred to it and have found that property No. 25 of the list annexed to the petition for attachment finds no place in the list of properties annexed to the writ. This may have been as Mr. De contends an oversight; but the writ can only operate to effect attachment over properties mentioned in it. The return of service shows that it was served in villages Sonbarsa, Sandali, Fatehpur, Rampur and Sadhaua; but there is no reference to Hasanpur at all. It is clear that so far as this writ is concerned, attachment of Hasanpur was not effected and there is nothing here either to prohibit or to invalidate any subsequent dealing with the property by the defendant, Mr. Russel. The other writ is Ex. 1 which was sent to the Subdivisional Officer, Gopalganj, for service.

The properties specified in this writ are the entire sixteen annas of proprietary interest in Mauza Sadhaua, Mahal Hasanpur, Kothia Rampur, pargana Dangsi, district Saran, tauzi No. 2130, sadarjama of the entire mahal being Rs. 251-4-3. It was forwarded for service and return. The report of service by the peon, Ramnagina Rai, is that he went to the mahal and after getting proclamation by beat of drum he caused a copy of the writ to be hung up in a tree and got a report written by the chaukidar. The chaukidar''s report is that a writ in respect of mahal Hasanpur having been brought by Ramnagina Rai he made a proclamation by beat of drum and hung up a copy of the writ in respect of the said mahal on a banyan tree. From the reports it might appear that the peon and chaukidar read the order as being an order of attachment of the entire mahal. But this it certainly was not. The mahal consists of four villages, Sadhaua, Hasanpur, Rampur and Kutlupur, and of these Kutlupur had previously passed out of the ownership of. Mr. Russel. There remained only three villages which could possibly be attached. In> the description of the property Sadhaua one of these villages is mentioned by name and after its name the words "Mahal Hasanpur" following are to be taken as descriptive and not as meaning another mauza nor yet as meaning the entire mahal including property never intended to be attached. The Subordinate Judge is right in saying that Mauza Hasanpur is not mentioned in either of the writs and so it follows that attachment of this mauza was not effected at all. We cannot look behind the writs to see what it was the intention-of the plaintiff to attach, but we must see-from the writs themselves what was the property that was attached. On this issue therefore the plaintiff fails. There was nothing in the writs by which attachment of other properties was effected to prohibit Mr. Russel from transferring this property Hasanpur or to invalidate any such transfer.

It remains to consider the second issue; and our attention has been drawn to the fact that Mr. Russel was seriously embarrassed at that time by pressing creditors and had motive for disposing of the property to persons out of their reach. That does not of course prevent the burden of proof from still lying on the plaintiff to show that in this case the transaction was; not a real transfer. There was at the time; a decree in course of execution against Mr. Russel. It was obtained at the instance of one Ramgolam Singh and the sale deed itself recites that a portion of the consideration money, namely Rupees 4242-7-6 is required for satisfying this execution creditor. The evidence is that his decree was-satisfied out of the sale proceeds of this-property. Exs. A, B and C are petitions in the execution case acknowledging receipt of the decretal moneys. Then there is oral evidence of the passing of balance of the consideration in cash. In addition defendant 1 supports his possession by rent receipts and counterfoils such as, by proof of mutation of his name in Register D and by certified copies of books in rent suits. Against this the plaintiff has nothing but suggestion, and some not very satisfactory oral evidence.

It can be said for the plaintiff that Sitaram Sahu has not gone into witness box himself and has not produced his books of account. But this is not enough to shift the burden of the proof on to the other side and in my opinion the burden of proof is not discharged. Prima facie, possessions has passed to and is with Sitaram Sahu, the transferee, and the evidence does not displace the presumption arising. In my view the plaintiff fails on both the issues and the appeal must be dismissed with costs.

Chatterji J.

I agree, but I wish to add a few words. The question whether a particular property has been attached has to be determined with reference to the writ of attachment. In the present case no doubt the property in question, Mauza Hasanpur, was mentioned in the application for attachment before judgment and the order for attachment was made in terms of that application; but the writ (Ex. 3) served by the Civil Court peon obviously does not mention this mauza at all. As regards the writ (Ex. 1) which was served through the collectorate, the description of the property may perhaps be said to be rather ambiguous but it is difficult to hold that Mauza Hasanpur was included. Even assuming that the writ Ex. 1 was in respect of Mauza Hasanpur and the attachment was effected as reported by the chaukidar who served it, still the question remains whether the attachment was valid. Order 38, Rule 7, Civil P.C., lays down:

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

Now the mode of effecting attachment of immovable property in execution of a decree is prescribed in Order 21, Rule 54, Civil P.C., which is 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 courthouse, and also, 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.

This rule will apply to attachment before judgment of immovable property as there is no other express provision as to how such attachments are to be effected. There cannot be valid or effective attachment of immovable property unless the requirements of Order 21, Rule 54, Civil P.C., are satisfied. Admittedly in the present case there was no prohibitory order as contemplated by that Rule. Consequently there was no valid attachment. Mr. B.C. De, the learned advocate for the appellant, contends that where, as in the present case, there is an order of conditional attachment before judgment the appropriate form of the attachment process to be issued is that prescribed in Form 5, Appx. F, Civil P.C., and this is the form which was employed in the present case. But this form must be read with Order 38, Rule 5 which Speaks of an order for conditional attachment but does not provide how the attachment is to be effected where the property is immovable.

Looking to the form itself, it seems to suggest that it primarily contemplates the attachment of moveable property because it directs the serving officer to keep the property under safe and secure custody. However it is the form in which the order under Order 38, Rule 5 is to be served, but the actual attachment where the property is immovable, is to be effected in the manner provided in Order 21, Rule 54 for which the proper form is prescribed in Appendix E, Form 24. I am supported in this view by the decision in Bharat Chandra Pal Vs. Gouranga Chandra Pal and Another, where under similar circumstances it was held that an attachment before judgment of immovable property, although issued in the form, prescribed in Appx. F, Form 5, was not an effective attachment within the meaning of Order 21, Rule 54.