Shyamananda Mohapatra vs Gopal Sahu and Others

Panigrahi, C.J.—This is a plaintiff''s second appeal in a suit for declaration of title and confirmation of possession of three acres of land in

Khata nos. 39 and 51 of village Sadeipur. The plaintiff''s case is that he purchased the suit property in execution of a money decree against

defendant No. 4 on. 21-1-1935 in M. S. No. 487 of 1927 and obtained delivery of possession through court on 15-8-1936. It is said that the

property had been attached before judgment under Order 38, Rule 5 of the Civil Procedure Code. The contesting defendant No. 1 claims to have

purchased the same property at an execution sale held at the instance of the landlords, who are defendants 2 and 3 and had obtained a rent

decree. The main contest between the parties therefore is confined to the question as to who has got priority of title as between the two competing

court sales.

Admittedly Defendant No. 1''s purchase was on 30-5-1934 while the plaintiff''s purchase was on 21-1-1935. Both the Courts below have

concurrently held that the decree in execution of which defendant No. 1 purchased the suit property was a money decree and did not have the

effect of a rent decree. They have also concurrently held that the attachment before judgment relied on by the plaintiff has not been proved and that

the plaintiff cannot claim priority of title on that ground.

The only point that has been argued at some length before me is whether the attachment before judgment alleged to have been effected at the

instance of the plaintiff can be said to have been proved, on the evidence produced by either party. The plaintiff alleged in paragraph 3 of his plaint

that the properties had been attached before judgment and the defendant put him to proof of the alleged attachment and specifically denied that

there had been any such attachment or delivery of possession through Court.

It is also admitted that much of the evidence relating to the proceedings which culminated in the attachment in the earlier suit is not available as the

records concerned have all been destroyed. The plaintiff has therefore relied upon Ext. 3, the notice under Order 38, Rule 5, Civil P. C., and Ext.

4, an order of the Court, to show that a claim case had been preferred and rejected. He has also relied on Ext. 2 of the year 1927, which is a

compromise petition (rafanama) filed by the plaintiff and the judgment-debtor. The contention on behalf of the appellant-plaintiff is that in view of

the fact that a notice under Order 38, Rule 5, Civil P. C., had, in fact, been issued and served, and that a claim had been preferred to the

attachment by a third party terminating in an admission by the judgment-debtor there had really been an attachment before judgment and that it

should be presumed that tlie notice under Order 21, Rule 54, Civil P. C., as given in Form 24 of Appendix E was issued.

Order 38, Rule 5 of the CPC provides that the Court may call upon the defendant either to furnish security, or to show cause why he should not

furnish security. It also empowers the Court to direct conditional attachment of the whole, or any portion of the property specified by the plaintiff

until the defendant shows cause. If the defendant fails to show cause why he shall not furnish such security or if he fails to furnish such security, the

Court may order, under Rule 6, that the property be attached. If, on the other hand, the cause shown satisfies the Court the attachment may be

directed to be withdrawn. Rule 7 provides that the attachment shall be made in the manner prescribed for attachment of property in execution of a

decree.

Now, Ext. 3 shows that the order issued by the Court purports to be one under Order 38, Rule 5, Civil P. C. and directed the bailiff to attach the

property, given in the schedule, until further orders of the Court This order was duly executed and the Amin reported that he had proclaimed by

beat of drum as well as by affixture of a copy of the notice on the land and thus effected the attachment. He further reported that he could not affix

a copy on the Court house as a second copy had not been sent to him. It would appear that the plaintiff failed to give any evidence as to what

transpired after the defendant appeared and showed cause. In fact, there is no evidence at all of any notice under Rule 6 of Order 38 having been

issued, as provided in Form VII in Appendix F.

The point made by learned counsel for the respondent is that what had been done so far was only a taking over of the property into the custody

of the Court; and that there was no order prohibiting the judgment-debtor from dealing with property or restraining the alienation of the property as

provided for in Order 21, Rule 54, Civil Procedure Code. Form No. XXIV in Appendix E shows that the effect of an order under Rule 54 is to

prohibit and restrain the defendant from transferring or charging the property specified in the schedule by sale, gift or otherwise. It also prohibits, all

persons from receiving the property by purchase, gift, or otherwise. Mr. Rao for the appellant says that the Court may presume that such a notice

roust have been issued in view of the fact that the judgment-debtor himself made an admission in the compromise petition filed into Court (Ext. 2).

Mr. Das, appearing for the respondent, however contends that the presumption that a Court can make can extend only to the regularity or

otherwise of the official act and not to the performance of the act itself. My attention was drawn to the case reported in -- AIR 1934 217 (Privy

Council) where their Lordships of the Privy Council observed :

It ought to be presumed in the case of an attachment that all necessary formalities were complied with.

It that case, however, their Lordships were satisfied that there was evidence that the land had, in fact, been attached, and laid down that in such

circumstances the presumption u/s 114, Evidence Act, could be made by Court. In the instant case, however, except an admission by the

judgment-debtor that the attachment before judgment should continue there is no evidence adduced that such an attachment was in fact ordered to

be made. It may well be that the parties to the suit were acting under a misapprehension that the issue of the notice under Rule 5 of Order 38, Civil

P. C. was itself a notice of attachment, as contemplated in Rule 54 of Order 21. But mere admission of the parties is not, in my opinion, sufficient

compliance with the specific provision of Rule 54. The further fact that a third party filed a claim petition on the assumption that there had been an

attachment before judgment, is equally ineffective, in law, to operate as a valid attachment.

It may be noticed that the claim petition itself was filed seven years after the decree and the learned Munsif relied on Ext. 2 in proof of attachment

before judgment. But as I have stated already, mere admission of the parties, without anything more, is not enough to constitute attachment which

should be done in the manner prescribed in Rule 54 of order 21, Civil P. C. I am therefore of opinion that this is not a case in which a presumption

that an attachment had, in fact, been made before judgment can be drawn on the materials placed before the Court. I would therefore accept the

findings of the Court below, though for different reasons, and would hold that the plaintiff has failed to prove that the properties had been attached

before judgment. The defendant''s title should accordingly prevail over that of the plaintiff.

The appeal fails and is dismissed, but in the circumstances there will be no order as to costs.