Shahul Hameed Mytheen Maluk Mohamed vs Arunachalam Boothalingom

Joseph Vithayathil, J.—The Defendant is the Appellant. The Plaintiff''s suit was one for redemption of a mortgage Ex. A. dated 13-1-1089. He sought for redemption of 2/3rd of the property or in the alternative of the whole property. The mortgaged property originally belonged to one Muthamma Bhagavathi Ammal, a Nanjinad Veliala lady. On 13-7-1089 she and her son Adakalam Pillai executed the mortgage to one Kumaraswamy Pillai and the latter was thereafter in possession.

Subsequent to this mortage, Bhagavathi Ammal, her son and her daughter Muthamma partitioned their property and the equity of redemption of tile mortgaged property was allotted to Muthamma. Muthamma is stated to have borrowed 1000 fanams from one Peeru Mohamed under a debt bond, Ex. B dated 26-2-1100, The bond was assigned to one Subramonia Tharakanar under Ex. G and the latter obtained a decree against Muthamma in O.S. No 1631 of 1100 of the Munsiff''s Court of Nagercoil.

The plaint property was attached before judgment in that ease on 12-11-1100, pursuant to an order for attachment passed on 6-11-1100. When the properties were brought to sale a daughter of Muthamma filed a Suit to set aside the decree and execution proceedings on the around that the debt was not building on the tarwad and that the plaint property which was said to belong to tarwad could not be sold in execution.

That Suit was originally filed in the Munsiff''s Court but was later transferred to the District Court where it was tried as O.S. No. 132 of 1103. The suit was allowed in respect of l/3rd of the property only. During the pendency of that suit the execution of the decree in O.S. No. 1631 of 1100 had been stayed by an order of injunction. After the disposal of O.S. No. 132 of 1108, the decree-holder in O.S. No. 1631 of 1100 brought the property to sale again and purchased 2/3rd or the property on 22-4-(sic)

This sale was duly confirmed and Ext. O (sic) sale certificate. During the pendeney of O.S. No. 1631. of''1100, Muthamma had sold tho whole Property to one Pana Chidambaram Pillai under Ext. IV dated 16-8-1101. By successive transfers Chidambaram Pillai''s rights under Ext. IV became vested in the Defendant who redeemed the whole mortgage. The Plaintiff purchased the equity of redemption from the decree-holder-auction-purchaser in O.S. No. 1631 of 1100 and instituted the suit for redemption of 2/3rd of the property on in the alternative of the whole property.

The contentions of the Defendant who opposed redemption were that the debt under Ext. B was not binding, on the sub-tarwad of Muthamma and that the attachment and execution proceedings in O.S. No. 1631 of 1100 were fraudulent and collusive and were not in accordance with law. It was therefore contended that the sale deed executed by Muthamma was valid and that the decree-holder-auction-purchaser under whom the Plaintiff claims did not obtain valid title to the property.

It was also contended that the Defendant was a bona-fide purchaser for value and that his rights could not be affected by the Court sale. The trial Court held that the attachment was valid and that the sale deed executed by Muthamma after the date of the attachment could not prevail over claims enforceable under the attachment

It was also held that the Defendant was not entitled to plead that the debt, bond was not binding on the sub-tarwad of Muthamma, in view of the decision in O.S. No. 132 of 1103. The suit was accordingly decreed allowing the Plaintiff (sic) redeem 2/3rd of She property. This appeal has been preferred from this decree.

The main point urged on behalf of the Appellant is that there was no valid attachment Is O.S. No. 1631 of 1100. It is useful in this connection to refer to the pleadings in the case. It was stated in para 5 of the plaint that the Plaintiff in O.S. No, 1631 of 1100 had applied for attachment before judgment of this properly and that an order of attachment was passed on 6-11-1100 in pursuance to which the properties were attached on 6-11-1100. The answer of the Defendant is contained in para 3 of the written statement which is extracted below:

The proceedings relating to the suit O.S. No. 1631, of 1100 and the attachment before judgment referred in para 5 of the plaint were collusive, fraudulent and invalid and not binding on the properties. This Defendant dose not admit that the attachment was valid or complete or in accordance with law.

The point pressed before the lower Court as seen from the judgment was that the attachment was not properly effected by complying with the provisions in Order 21, Code of Civil Procedure. Learned Counsel for the Appellant raised Anr. ground also viz., that it was not proved that there was a valid order of attachment. It was also contended that attachment was not effected according to the provisions of law regarding the same. These are the main pointy arising for decision in this case.

As regards the first ground viz., whether a valid order for attachment was in O.S. No. 1631 of 1100, the specific averment in the plaint that such an order was passed on 6-11-1100 was not denied in the written statement. Assuming that the allegation in the third paragraph of the written statement covers this point also the question may be examined. Reference was made to several decisions to show that there should be a proper order of attachment prohibiting the judgment-debtor from transferring the property sought to be attached.

It is unnecessary to refer to the decisions cited on this point as the proposition was not controverted by the Respondent. It was argued that it could not be presumed that such an order was passed in O.S. No. 1631 of 1100. There is no need to decide this matter on presumptions because Muthamma who was the Defendant in O.S. No. 1631 of 1100 and who was examined as P.W. 1 in this case admitted that an order of attachment was served on her and that she accepted the same.

In view of this admission it was not necessary for the Plaintiff to adduce other evidence on this point. The question whether a valid order of attachment was made is one of fact and it was not suggested either in the pleadings or in the evidence that such an order had not been passed. The report of the Amin who effected the attachment is Ext. D. That also refers to the order dated 6-11-1100 in pursuance to which the attachment was made. In these circumstances this contention of the Appellant has to be overruled.

It was strenuously contended on behalf of the Appellant that the attachment was not effected in the manner provided in Order 21 Rule 54, CPC Order 21 Rule 54(2) provides:

The order shall be proclaimed at some, place (sic) such property by best 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 in the Pakuthy Cutcherry or the Village Office, as the case may be, of the place in which the ''land is situate.

The argument is that when several properties are attached a copy of the order shall be affixed on every one of those properties and that failure to comply with the same renders the attachment invalid. The Appellant relied on the decision of this Court in -Mariamma Mathew v. Ittop Poulo AIR 1952 TC 159 (FB) (A). In that case, 11 items of immovable properties which were sought to be attached lay scattered in 4 different Muries and the Amin who effected the attachment selected one item in each Muri for affixing the copy of the order.

As regards the other properties, the copy of the order was not affixed at all on the same. It was held that tire attachment was invalid in respect of the properties on which copy of the order was not affixed. The case law on the subject has been elaborately reviewed in the decision cited above. The question is how far this decision applies to the facts of this case which are somewhat different.

The property attached in O.S. No. 1631 of 1100 was a compact block lying within the four boundaries mentioned in the schedule. The property was comprised in 12 different survey numbers. What is required by Order 21 Rule 54 is that a copy of the order should be affixed on a conspicuous part of "the property'' to be attached, It, does not say that where a property to be attached consists of more than one survey number lying within the same boundaries, the order should be affixed on each survey number.

This argument if pursued to a logical conclusion would mean that when each survey number is subdivided a copy of the order should be affixed on each of the sub-divisions also. If this argument is accepted it means that whenever an Immovable property comprised in more than one survey number has to be attached the Amin has to measure and locate each survey number with the aid of the survey plan before affixing the copy of the order of attachment.

Such could not have been the intention of the Legislature in using the word "the property" and such a conclusion is not warranted by the decision cited above or the various cases .referred to therein. Leach C.J. explained this provision in Kommana Rukminamma Vs. Talapanti Ramayya and Others, , as follows:

In our opinion, the use of the word "property" implies separate attachment where the application for attachment embraces several properties situate in different places.

In - Pedro Anto-nio De Penha v. Talbhoy Ardeshirset 12 Bom 368 (C). it was held that a merer breaking up an area into lots docs not necessarily make it several properties for the purposes of proclamation of attachment or sale. In these circumstances we are unable to uphold the contention that attachment was not validly effected.

It was also contended that the Appellant was a bona-fide purchaser for value without notice of the attachment and that his rights should therefore be protected. This question is quite irrelevant in view of our finding that the property was validly attached before the date of the transfer, under which the Appellant claims. The question whether debt bond executed by Muthammal was binding on her sub-tarwad was not pressed before us.

As a result of the finding recorded above, the Plaintiff''s title to redeem 2/3rd of the property must be upheld. The decree of the Court below is therefore confirmed and the appeal is dismissed with costs.