Sri Krishna Chit Funds (Sattur Private Limited) vs R.S. Pillai and another

Aggreived by the orders in E.A.No.38 of 1999 in E.P.No.87 of 1999 in O.S.No.18 of 1997 on the file of Subordinate Judge, Sivakasi, which

was confirmed by the Principal District Judge, Srivilliputhur in C.M.A.No.34 of 1999, the appellant has filed the above second appeal before this

Court.

The case of the appellant is briefly stated hereunder: The appellant Sri Krishna Chit Funds purchased the suit property in dispute from the 2nd

respondent herein for valuable consideration on 24.12.97. They were put in possession and enjoyment of the said property even on the date of

sale. The appellant is continuing in possession of the suit property, it is stated that the first respondent herein filed a suit in O.S.No.18 of 1997

against the 2nd respondent, herein and obtained attachment before judgment of the-said-property belonging to the 2nd respondent. The appellant

was not aware of the said attachment before judgment. The appellant as a bona fide purchaser made enquiries and perused encumberance

certificate. The Encumberance certificate obtained did not disclose the attachment before judgment. When the sale proclamation was sought to be

affixed in the suit property, the appellant came to know about the sale before judgment. Therefore, they filed E.A. No.38 of 1999 in E.P.No.87 of

1999 in O.S.No.18 of 1997 on the file of Subordinate Judge, Sivakasi. The trial-court as well as the appellate court on an erroneous view of law

and facts dismissed their application as well as appeal, against which they filed the present second appeal before this Court. The appellant had

proved that the attachment before judgment did not find a place in the encumberance certificate and mandatory provisions contemplated under

Order 38, Rule 11 (b) and Order 21, Rule 58A of the CPC were not complied with. The appellant had also discharged the loan and the

consideration for Sale-deed had paid. The attachment before judgment was not disclosed at the time of sale and they are a bona fide purchaser.

On behalf of the first respondent, it is stated that the provisions of Order 38, Rule 11 (b) and, Order 21, Rule 58A of the C.P.C., were fully

complied with. The order of attachment was within the knowledge of the appellant herein and they are not a bona fide purchaser for valuable

consideration. The alleged-purchase of property under Sale-deed dated 24.12.97 long after the order of attachment before judgment was passed

is itself void u/s 64 of the C.P.C. The said provision is mandatory in nature and provides that after an attachment is made, if any transfer by private

sale has been effected, the said transfer would be void as against all claims enforceable under the attachment.

In the light of the above factual position, I have heard Mr. Peppin Fernando, learned counsel for the appellant and Mr. G. subramaniam, learned

senior counsel for the respondents.

It is the case of the appellant that they purchased the suit property belonging to the second respondent herein on 24.12.1997 by way of a

registered sale-deed for a consideration of Rs.4,98,360. Certified copy of the sale-deed has been marked as Ex.P-1. It is also their definite case

that on the date of the sale, the second defendant handed over possession to the appellant herein. It is further seen that on the date of the sale, the

appellant herein discharged various debts borrowed by the second respondent. All those details including various order of attachment were

mentioned in Ex.P-1. In addition, to various debts, the second, respondent owed a sum of Rs.1,50,000 to a housing co-operative society at Sattur

and on the date of sale the total outstanding to the society is Rs.2,16,000. The appellant agreed to discharge the said loan to the society. The same

has been mentioned in the sale-deed itself. It is further seen that the first respondent herein filed a suit in O.S.No.18 of 1997 before the Sub Court.

Sivakasi for a recovery of a sum of Rs.2.32,400 with interest at 24 per cent. The said suit has been filed on 28.1.97. On the very same day, the

first respondent herein filed I.A.No.117 of 1997 under Order 38, Rule 5 read with Section 151 CPC for attachment of the suit property. On

14.2.97 the Court below directed the second respondent to furnish security. Since the second respondent failed to appear and contest the matter,

he was set ex parte and an ex parte order of attachment before judgment was made on 14.3.1997. Finally the said application was closed on

25.4.97. The Court below has directed a Senior Bailiff to serve the order of attachment in the office of the sub Registrar, Sattur and get an

acknowlegdgement from them and submit the same to the Court. Ex.R-1 discloses that the attachment order had been served on the Office of the

Sub-Registrar, Sattur. However, in view of certain defects in the communication, namely, failure to furnish the Ward No., extent, value of the

property in the Schedule, the Office of the Sub Registrar. Sattur returned the said communication to the Sub Court, Srivilliputhur. Ex.P-11 is the

return endorsement of the Sub Registrar, Sattur to the Sub Court, Srivilliputhur. However the order of the Sub Court discloses that there is no

proof that the required particulars were furnished to the Sub Courts. By pointing out the above infirmity, Mr. Peppin Fernando, learned counsel for

the appellant, contended that the attachment order must be intimated to the registering officer and in the absence of such compliance and also in the

absence of any entry in the registers maintained by the sub Registrar regarding encumberances, the sale made by the appellant under Ex.P-1 on

24.12.97 is valid. He also contended that failure to comply with the mandatory provisions, namely. Order 21, Rule 58-A and Order 38, Rule 11-

B of the CPC vitiate the entire proceedings including the order of attachment and subsequent sale, hence both the impugned orders are liable to be

set aside. In support of his contentions, he relied on various decisions. On the other hand, Mr. G. Subramaniam learned senior counsel for the

respondents, would contend that in the absence of specific plea to show that the attachment is void that failure to submit certain details to the Sub

Registrar''s Office is a mere omission by the Court and that appellant being not a bona fide purchaser for value, and being aware of the attachment

order, the Courts below rightly rejected their claim; accordingly prayed for dismissal of the second appeal. He also relied on certain decisions in

support of his contention.

I have carefully considered the rival submissions.

Before considering the rival submissions, I shall refer the substantial questions of law determined by this Court while entertaining the second

appeal on 11.2.2000.

1) Whether both the Courts below failed to note that the appellant is a bona fide purchaser for value and that the appellant was not aware of the

attachment before Judgment?

2) Whether both the Courts below failed to note that the mandatory provisions contemplated under Order 21, Rule 58 (A) and Order 38, Rule 11

(B) C.P.C. was not complied with?

I have already stated that in respect of a money claim, the first respondent herein filed a suit in O.S. No.18 of 1997 on the file of Sub Court.

Srivilliputhur and that pending suit, he also filed I.A. No.117 of 1997 for attachment before judgment of the suit property. It is further seen that the

second respondent did not contest the said application; consequently the attachment order was granted and the application was also closed.

Further, on the basis of the endorsement made by the second respondent, the trial Court decreed the suit in O.S. No. 18 of 1997 on 19.9.97. The

Court below has also granted 6 months'' time to the second defendant to pay the decree amount. Accordingly, it is clear that the attachment order

passed on 14.3.97 was in force. By Ex.P-1, the appellant herein purchased the very same suit property on 24.12.97. Now I have to consider

whether there was a valid attachment order and if so, the same was communicated to the concerned office of the Sub Registrar? Incidentally I have

to consider whether the appellant, herein was a bona fide purchaser for value and whether he had the knowledge of attachment order of the sub

court. Now I shall refer the relevant provisions regarding the order of attachment. As per Section 64, C.P.C., where an attachment has been

made, any private transfer or delivery of the property attached or of any interest therein-shall be void as against all claims enforceable under the

attachment. Order 21, Rule 54, C.P.C. speaks about attachment of immovable property. It is as follows:-

Order 21, Rule 54. Attachment of Immovable property, - (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 anyway, and all persons from taking any benefit from such transfer or

charge.

(1A) The order shall also require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms

of the proclamation of sale.

(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 revenue to the Government, in the office of the Collector of the district in which the land is situate, and where the property is land

situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.

HIGH COURT AMENDMENT (MADRAS): (i) Substitute the following for sub-rule (2):

(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 Revenue'' Divisional Officer of the area where the land is situated.

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

Military Estates Officer concerned, and where the property is situated within the limits of a Municipality, in the office of the Municipality within the

limits of which the property is situated.

(ii) Add the following as sub-rule (3):

(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.

Order 21, Rule 58 relate to adjudication of claims to, or objections to attachment of property. As per sub-rule (2), all questions arising between

the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by

the Court dealing with the claim or objection and not by a separate suit. Order 21, Rule 58-A speaks about communication of the order of

attachment to the Registering Officer.

58-A. Order of attachment to be communicated to the Registering Officer:-Any order of attachment passed under Rule 54 of this Order raising

the attachment by removal, determination Of release passed under Rules 55, 57 or 58 of this Order, shall be communicated to the Registering

officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate.

(Amendment dt.29.6.1987)

Order 38, Rule 11 says that the property attached before judgment not to be re-attached in execution of decree. As per Rule 11A, the provisions

of this Code applicable to an attachment made in execution of a decree shall apply to an attachment made before judgment which continues after

the judgment by virtue of the provisions of Rule 11. Here again, Rule 11-B speaks about communication of order of attachment to the Registering

Officer. It reads thus:-

Rule 11-B. Order of attachment to be communicated to the Registering Officer,-Any order of attachment passed under Rule 5 or 6 of this order

raising the attachment passed under Rule 9 of this order shall be communicated to the Registering Officer within the local limits of whose

jurisdiction the whole or any part of the immovable property comprised in such order, is situate. ""(Amendment dated 29.6.1987)

When an order of attachment of immovable property is made before judgment, certain procedures have to be complied with as per sub-rule (2),

Order 21, Rule 54. The order of attachment has to be proclaimed at some place on or adjacent to such property by beat of drum 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 revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land

situate in a village, also in the office of the Gram Panchayat, if any having jurisdiction over that village. Though an order has been made for attaching

the property in question before judgment even on 14.3.97, no one has appeared and explained before the Sub Court regarding compliance of sub-

rule 2 referred to above. As a matter of fact the claimant namely appellant herein alone was examined as P.W.1 and no one was examined on the

side of the respondents. As per amendment to Order 21, Rule 58 made by this Court (Amendment dated 29.6.1987), the order of attachment

passed under Rule 54 raising the attachment by removal, determination or release passed under Rules 55, 57 or 58 shall be communicated to the

Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property under attachment comprised is

situate. Similar provision is brought in on the same term in Order 38, Rule 11-B. The reading of the Madras High Court Amendment in Order 21,

Rule 54 would show that the attachment order has to be proclaimed at some place on or adjacent to such property by beat of drum and a copy of

the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house. If the property is land paying

revenue to the Government, a copy of the order shall be affixed in the office of the Revenue Divisional Officer of the area where the land is

situated. Where the property is situated within the limits of a Municipality, the order shall be affixed in the office of the Municipality within the limits

of which the property is situated. Likewise, High, Court amendment namely Rule 58-A authorises the Court that any order of attachment passed

under Rule 54 raising the attachment by removal, determination or release passed under Rules 55, 57 or 58 of this Order, shall be communicated

to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is

situate.

I have already stated that except the oral evidence of P.W.I, no one was examined on the side of the respondents in order to prove the

compliance of Order 21, Rule 54 (2), C.P.C. Regarding the communication of the order of attachment to the Registering Officer, the appellant as

P.W.I has deposed thus:-

Though it is seen from Ex.R-1 that the order of attachment has been communicated to the Sub-Registrar''s Office, Sattur as per Ex.P.11 the said

order has been returned to Sub Court, Srivilliputhur stating that the order does not contain Ward No.. extent, value of the schedule mentioned

property. With reference to the details asked for by the Office of the Sub Registrar, Sattur under EX.P.11, admittedly there is no evidence before

the Sub Court whether those particulars have been furnished to the Sub Registrar''s Office, Sattur or not. In this regard, it is relevant to refer the

observation made by the learned Subordinate Judge at paragraph 12 of his order:-

I have already referred to the evidence of P.W.I as well as the communication of the Sub Registrar, Sattur under Ex.P.11. When the Madras

amendment Rules 58-A and 11-B specifically say that the order of attachment has to be communicated to the Registering Officer, it is clear from

the evidence of P.W.1 coupled with Ex.P-11 communication from the Office of the Sub Registrar to Sub Court and in the absence of any

information regarding furnishing of particulars called for and resubmitting the order of attachment to the office of the Sub-Registrar, I hold that

Order 21, Rule 58-A and Order 38, Rule 11-B have not been complied with, only on receipt of proper Order of attachment, it would be possible

for the Sub Registrar to make necessary entries in their registers in respect of the property in question and if any one who deals with the property,

makes an application requesting for encumberance certificate, the order of attachment will be noted in such certificate, it is clear from the

particulars furnished that though the subordinate Judge has passed an order of attachment, the same has not been communicated to the Registering

Officer concerned.

Mr. G. Subramaniam, learned senior counsel for the respondents, would state that there-is no such plea, namely, the attachment is void. He also

contended that even other-wise for the omission committed by the Court the party cannot be penalised. Regarding failure of compliance of Order

21, Rule 58-A and Order 38, Rule 11-B it has been specifically pleaded by the claimant/appellant herein in E.A.No. 38 of 1999 and he also

deposed before the court as P.W.I. Further, it is clear that in view of the omission of material particulars in the order of attachment, the office of

the Sub Registrar, Sattur returned the order under EX.P-11 with a request to furnish all the details. In such a circumstance, it is the duty of the

Court to communicate the order of attachment with relevant and correct particulars namely survey number, door number, extent, value of the

property etc., as requested by the office of the Sub Registrar to enable them to make necessary entries in their registers. In such a circumstance, I

reject the contention raised by the learned senior counsel for the respondents.

Now I shall consider the various decisions relied on by both sides. In Nagarathina Amma v. Syndicate Bank, etc., 1994 (2) L.W. 62, the

Division, Bench of this Court had an occasion to consider the very same provisions as well as rules framed on the Original Side of this Court. In

that case, the Division Bench based on the report of the Master of the Court has concluded that the order of attachment dated 12.8.87 was not

communicated either to the competent court or to the concerned Sub Registrar within those jurisdiction the property situates. After noting the fact

that the Sheriff''s office are not able to communicate the order of attachment either to the subordinate courts or Registrar or Sub Registrar, the

Division Bench has issued certain directions for compliance of the rules strictly. It is clear from the said decision that after insertion of Rule 58-A

duty is cast on the concerned court to communicate the order to the concerned office of the Sub Registrar.

11 In Muthiah Chetti v. Palaniappa Chetti, AIR 1928 P.C. 139, Their Lordships have held that merely passing an order of attachment is not

enough. Their Lordships have also held that no property can be declared to be attached unless firstly 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 clear from the said decision that mere

passing of an order is not sufficient and the other rules have to be strictly complied with in order to enforce the order of attachment.

In Keshavlal Madhavji Vs. Bibi Soghra and Others, , the Division Bench has held that mere order to make an attachment does not amount to

an actual attachment, and that the attachment is not complete until it has been effected in the manner prescribed by the rules.

In Monoharlal Banerjee Vs. Bengal Immunity Co. Ltd. and Another, , the Division Bench of Calcutta High Court has held that an attachment

to render a subsequent alienation invalid u/s 64 must be made in the manner prescribed by law. It has been also held that 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

have been done. Their Lordships have further held that this principle applies with equal force and precision whether the attachment is in execution

of a decree or is an attachment before judgment and whether the mode and manner in which it is to be effected are those contained in the CPC or

those prescribed by the rules of the original side of the High Court.

In Pokhpal Singh and Others Vs. Kanhaiya Lal and Others, , the Division Bench of Allahabad High Court has held that attachment is not made

within the meaning of Section 64 of the Code by the mere making of an order for attachment. In virtue of sub-rules (1) and (2) of Order 21. Rule

54 an attachment cannot be said to nave been made unless and until the provisions of both sub-rules have been complied with.

In Murugappa Chettiar Vs. Thirumalai Nadar and Others, , after considering Order 21, Rule 54. Rajamannar, J., (as His Lordship then was)

has held as follows:-

The fact that an order for attachment has been pending is not sufficient to establish the factum of attachment. An attachment cannot be said to

have been made unless and until the provisions of both sub-rules of Order 21, rule 54, civil Procedure, have been complied with, that is to say

there must first be an order prohibiting the judgment-debtor from transferring or charging the property in any way and secondly the 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. Where several properties are sought to be attached in pursuance to an order of attachment there must be proof of

affixture on every one of the properties.

Illustration (e) to section 114 of the Indian Evidence Act no doubt declares that judicial and administrative 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 the

particular judicial or official act was regularly performed. But when the dispute is whether a particular judicial or official act was performed or not,

there is nothing in law which enables a Court to presume that the act was as a matter of fact performed. Where the question is whether there was

any affixture at all of the attachment order on the properties sought to be attached and there is no reliable evidence as to the fact of affixture the

party cannot prove the affixture by relying on the presumption under the Evidence Act. Also, in such a case it is discretionary for the Court to rely

on the presumption and it may refuse to do so where the party ''seeks it long after all the material evidence on the point has ceased to be available.

Here, in our case,'' I have already stated that there is no evidence on the side of the respondents with regard to compliance of the relevant rules.

On the other hand, it is clear from the evidence of P.W.I and Ex.P-10 that the attachment order has not been re-communicated to the Sub-

Registrar''s office with relevant and correct particulars.

In Jagannath Prasad Vs. Mahabir Ram Kumar and Another, . the Division Bench of Patna High Court has held that an attachment operates

only when it is actually made and not from the date when the order for attachment is made.

In Venkata Subbarao v. Krishnayya AIR 1956 And. 59. the Division Bench of Andhra Pradesh High Court has held that before a mortgage

can be claimed as being void u/s 64, CPC on the ground of its having been effected contrary to the attachment before judgment, made in a suit it

must be proved that the attachment was a valid one. To render a subsequent alienation invalid, an attachment before judgment, just like an

attachment in execution, must be made in the manner prescribed by the Civil Procedure Code. It is only then that the attachment would operate as

a valid prohibition against alienation. And by virtue of Order 38, Rule 7 an attachment of property before judgment has to be effected in the same

manner as an attachment of property in execution. Hence, it is not sufficient to publish the order of attachment before judgment of immovable

property in the terms of Appendix F. Form No.5, but the law requires that a prohibitory order must be made and published in the manner

prescribed by Order 21, Rule. 54. It is only then that the attachment before judgment can operate as a valid prohibition against alienation of the

property sought to be attached. And when there is no such order and no such publication the mortgage is not void u/s 64.

In Padmavathi Ammal v. Maruthachalam Pillai 1966 (1) MLJ 413. the Division Bench of this Court has held as follows:-

For the interdiction against alienation to have effect and invalidate private transfer of an attached property u/s 64 of the Civil Procedure Code, the

requirement is that the attachment must have been ""made"". For section 64 to have effect the mere fact that an order of attachment has been passed

is not sufficient. The order is only the beginning and not the end of attachment'' and till there is punctilious observance of the requirements of the

Code of Civil Procedure, as to attachment an attachment cannot be said to have been ""made"" and section 64 will have no application. Thus, in the

case of attachment of immovable property, the attachment to have the effect of invalidating private sale u/s 64 all the requirements of Oder 21, rule

54 of the C.P.C., have to be strictly adhered to and punctiliously followed.

In Sri Krishna Gupta and Another Vs. Shri Ram Babu and Others, the Division Bench of Allahabad has held that no attachment comes into

existence unless whole procedure prescribed by law for making attachment is gone through. The Division Bench has further held that though a

Court has jurisdiction to attach property in order to achieve that object it is bound to follow procedure provided by law; for, a thing for which

provision has been made must be done in that way or not at all. It has also held that if no attachment comes into effect according to procedure

prescribed, any step taken towards achievement of that object is a mere nullity and has no effect on the property.

In The Vijaya College Trust Vs. The Kumta Co-operative Arecanut Sales Society Limited and another, , the Division Bench of Karnataka

High Court has held that, (para 10)

The sum and substance of these rulings is that the order of attachment cannot be a proof that the attachment in fact has been effected. The party

relying on the attachment will have to prove that after the order of attachment was made, the attachment was effected in compliance with the

provisions of law. Order 21, Rule 54 of the CPC lays down the manner of attachment...

All the above decisions would show that order of attachment made either prior to the judgment or after the judgment is to be communi-cated to the

judgment-debtor and the court has to fully comply with the conditions prescribed in the rules. Though there is no direct decision with regard to

Madras amendment Order 2i, Rule 58-A. and Order 38, Rule 11-B C.p.C.. it is clear that in order to enforce an order of attachment, it is clear

that all the conditions, procedure are to be fully complied with failing which, the order of attachment cannot be sustained.

Now I shall consider certain-decisions relied on by Mr. G. Subramaniam, learned senior counsel for the respondents. He very much relied on

the decision of Apex Court in the case of Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, . Their Lordships in that decision

have held that the sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made

would be satisfied. Their Lordships have also held that it is a short of a guarantee against decree becoming infructuous for want of property

available from which the plaintiff can satisfy the decree. There is no dispute with regard to the proposition. However, the question is whether the

order of attachment has been made properly and the rules made under the Code have been complied with.

By relying on a decision of Srinivasan"" J.. (as he then was) in Kalyaniammal Vs. Punjab National Bank and others, . learned senior counsel for

the respondents, would contend that the claimant/appellant being not a bona fide purchaser and not paid entire sale consideration not entitled to

question the order of attachment. It is true that in that case the learned Judge after holding that the applicant was not a bonafide purchaser for value

in good faith; held that the application for release is not maintainable. In this regard, it is relevant to refer the evidence of the claimant as P.W.I. It is

clear from his evidence that he had discharged all the debts that were brought to his notice by his vendor namely 2nd respondent herein except one

mortgage debt to a Cooperative Housing society. However, as per the terms of mortgage, according to him, he continued to pay instalments in

time. In cross-examination, he has deposed that, -

Except the said amount, it is clear from his evidence that he had discharged all other debts as directed by the 2nd respondent herein. Hence, the

objection raised by the learned senior counsel for the respondents is liable to be rejected. For the same reasons, the decision referred to above as

well as another decision in Ramji Ram v. Krishnawati Devi, 1982 All.LJ 159 is not helpful to his case. It is also clear from the claim petition as well

as evidence of PW1 that the claimant-appellant bad discharged various debts as directed by the 2nd respondent herein. All the said details have

been referred to by the learned Subordinate Judge in the order impugned. Even though the second respondent was aware of the order of

attachment before judgment as well as subsequent decree of the trial court pursuant to his endorsement made, he deliberately failed to disclose the

same to the appellant herein. I have already stated that in view of non of the attachment order with necessary details by the Sub Court to the office

of the Sub Registrar, Sattur, the attachment order has not been entered in the register maintained by the Office of the Sub Registrar, Sattur;

accordingly the encumbrance certificate subsequently obtained by the appellant does not contain the order of attachment made by the Sub Court.

In the light of the factual position, the decisions referred to by the learned senior counsel for the respondents, namely, Vengalaveeran Vs.

Rajendran and Others, ; and D.V. Raghavan Vs. A.J. Suresh Kumar and another, are neither applicable to the facts of our case nor helpful to the

respondents. For the very same reasons, the other decision namely Veeramalai Vanniar (Died) and Others Vs. Thadikara Vanniar and Others, is

not applicable to our case.

To sum up it is clear that both the Courts below failed to take note of Ex.P-11 in which even though proper return endorsement had been

made by the sub Registrar''s office, Sattur and sent to the Sub Court, there is no evidence to show that it-was properly complied with and the

order of attachment was re-communicated to the sub Registrar''s office. When once the intimation had been returned back and when there is no

evidence that the same was re-communicated with required and correct particulars, there is no possibility of the order of attachment being entered

in the concerned registers maintained in the Office of the Sub Registrar and in the Encumbrance Certificate. Only if the said intimation was sent in

accordance with the rules and if it was accepted by the Sub Registrar''s Office as correct, then only the particulars as to attachment before

judgment will/be entered in the encumbrance certificate. AS per the conclusion of the learned Subordinate Judge/the intimation did not contain

Ward No.. area and value of the property. The defective intimation sent by the Sub Court had been returned back on 28.2.97. The appellant -had

purchased the property on 24.12.97. It is also clear that the encumbrance certificate was issued after verifying the encumbrance and other

particulars available from the registers maintained in the sub Registrar''s office for the period upto 30.12.1997. in this encumbrance certificate, the

entry as to attachment before judgment does not find a place. In such a circumstance, there is no possibility of the appellant knowing the order of

attachment; accordingly I am of the view that the Courts below committed an error in holding that the appellant had knowledge about the

attachment. I have already stated that the appellant had undertaken to discharge the debts of the second respondent which had been disclosed by

the second respon-dent and those debts had been discharged by the appellant. It is also clear that the second respondent, who did not contest the

application for attachment before judgment and who made endorsement thereon conceding the prayer of, the plaintiff/lst respondent herein,

suppressed the order of attachment to the purchaser, namely, the appellant herein. As already stated by me, all the disclosed debts had been

discharged by the appellant. Though the appellant had deposed as P.W.I and explained his case, nothing prevented the respondents from

explaining their stand before the Sub Court. The fact remains that no one was examined on the side of the respondents. In the absence of any such

evidence on the side of the respondents, both the Courts below ought to have believed the oral and documentary evidence let in by the appellant.

Though the appellant had not produced the original of Ex.P-1. he had produced the registration copy and ho objection was made at the time of

marking the said document.. Therefore, the observation of both the courts below that non-production of original deed is fatal to the case of the

appellant cannot be accepted. Like-wise, both the courts below have committed an error in holding that mere sending intimation to the Sub-

Registrar''s office is sufficient compliance of order 38. Rule 11-B and Order 21, Rule 58-A C.P.C. The said conclusion cannot be accepted when

admittedly the intimation does not contain relevant particulars and there is no proof that the same was re-communicated with relevant particulars.

The evidence amply show that the appellant is a bona fide purchaser for value and in the absence of any entry in the registers maintained by the

Sub Registrar''s Office, Sattur where the land in question situate the appellant was not aware of the order of attachment before judgment. I accept

the contention that both the Courts below failed to note that mandatory provisions under Order 21, Rule 58-A and Order 38, Rule 11-B were not

complied with and I hold that the claimant-appellant has established his case to set aside the order of attachment made in I.A.No.l17 of 1997 in

O.S.No.l8 of 1997 on the file of Subordinate Judge, Sivakasi.

Under these circumstances, I hold that the appellant is a bona fide purchaser for value and he was not aware of the attachment before

judgment. I also hold that the mandatory/provisions, namely, Order 21 Rule 58-A and Order 38, Rule 11-B C.P.C., were not complied with by

the Courts below. Accordingly, both the substantial questions of law framed are answered in the affirmative. Net result, the impugned orders of

both the courts below are set aside. E. A.No.38 of 1999 in O.S.No.18 of 1997 on the file of Subordinate Judge, sivakasi filed by the appellant is

ordered as prayed for and the Civil Miscellaneous Second Appeal is allowed. No costs. Consequently, both the miscellaneous petitions are

closed.