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Rameshwar Prasad and anr. Vs. Gaya Prasad and anr. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All154
AppellantRameshwar Prasad and anr.
RespondentGaya Prasad and anr.
Excerpt:
.....the attachment took place, they were entitled to the declaration sought. the whole object of the proclamation is that the judgment-debtor as well as other persons may come to know of the order prohibiting the making and taking of any transfers. therefore in a case in which the execution of the sale deed as well as the attachment have taken place |on the same date there is no statutory provision for priority between the two. that being so, rules of justice, equity and good 'conscience must be followed. in these circumstances justice is clearly on the side of the plaintiffs-respondents......of the debts due to the former. according to the finding of fact recorded by the court below a sale deed was executed by defendants 3 to 6 in favour of the plaintiffs on 5th july 1932, at 12 o'clock noon. this sale deed was registered the next day, i.e. on 6th july 1932. in the meantime the appellants had on 4th july 1932 applied for the execution of their decree by attachment and sale of this very property and had managed to obtain an order from the execution court for attachment on that very day, namely 4th july 1932. the attachment was actually made by the amin on 5th july 1932. when the plaintiffs learnt of this attachment and of the intention of the appellants to put the property to sale, they filed the suit for the declaration mentioned above. the case of the plaintiffs is that.....
Judgment:

Verma, J.

1. This second appeal has been filed by defendants 1 and 2 in a suit in which the plaintiffs prayed for a declaration that certain property was not attach, able and saleable in execution of a money deeree obtained by defendants 1 and 2 against the other defendants. The trial Court dismissed the suit but the lower Appellate Court has decreed it.

2. The material facts are these. Defendants 3 to 6 were indebted to a number of persons, the present appellants, and the plaintiff-respondents being among the creditors. The appellants had obtained a decree for the recovery of a certain sum of money from the Court of Small Causes against defendants 3 to 6 in Suit No. 1460 of 1932. The plaintiffs on the other hand entered into negotiations with defendants 3 to 6 for the sale of the latter's property in liquidation of the debts due to the former. According to the finding of fact recorded by the Court below a sale deed was executed by defendants 3 to 6 in favour of the plaintiffs on 5th July 1932, at 12 o'clock noon. This sale deed was registered the next day, i.e. on 6th July 1932. In the meantime the appellants had on 4th July 1932 applied for the execution of their decree by attachment and sale of this very property and had managed to obtain an order from the execution Court for attachment on that very day, namely 4th July 1932. The attachment was actually made by the Amin on 5th July 1932. When the plaintiffs learnt of this attachment and of the intention of the appellants to put the property to sale, they filed the suit for the declaration mentioned above. The case of the plaintiffs is that the attachment had been made by the Amin on 5th July 1932 about 5 o'clock in the afternoon, i.e. after the execution of the sale deed in favour of the plaintiffs, and that the Amin had, in collusion with the decree-holders, falsely stated in his report that the attachment had been made at 9 o'clock in the forenoon.

3. The allegation of the appellants in defence was that the attachment had as a matter of fact been made at 9 A.M. on 5th July 1932, and that the attachment having been made at 9 A.M. the sale deed, which was executed in favour of the plaintiffs at 12 noon on that day, was of no effect as against the attachment. The parties went to trial on this simple question of fact, viz. whether the attachment had been made at 9 A. M. or 5 P.M. on 5th July 1932. The Munsif held that the attachment had been made at 9 A.M. and dismissed the suit. The plaintiffs appealed, and the lower Appellate Court remitted to the trial Court certain issues for finding under Order 41, Rule 25, Civil P.C. One of those issues was 'Are the plaintiffs purchasers for value in good faith?' The parties were allowed to produce fresh evidence. The trial Court submitted its findings on all the issues remitted by the lower Appellate Court. Its finding on the issue mentioned above was that the plaintiffs were purchasers for value, but that they had notice of the fact that defendants 1 and 2 had taken out execution against defendants 3 to 6 and attachment had been made and that therefore they were not purchasers in good faith. The lower Appellate Court, after taking into consideration the entire evidence on the record, has disagreed with the findings of the Munsif. It has held that the attachment was as a matter of fact made at 5 P.M. on 5th July 1932, and that the Amin's report and deposition were not reliable. It has also held that the plaintiffs had no knowledge of the execution proceedings started by the appellants and of the order for attachment. It has further held that as a matter of fact defendants 1 and 2 - the appellants before us - got information of the fact that defendants 3 to 6 were going to execute a sale deed in favour of the plaintiffs and thereupon they rushed to the Court with an execution application and obtained an order of attachment and got the Amin falsely to state in his report that the attachment had been made at 9 A.M. although it had actually been made at 5 P.M. On these findings of fact the lower Appellate Court has held that the plaintiffs were purchasers for value in good faith and their wale deed having been executed before the attachment took place, they were entitled to the declaration sought.

4. The findings of fact recorded by the lower Appellate Court cannot be, and have not been, challenged by the learned Counsel for the appellant. He has however urged a point of law which was not raised either in the trial Court or in the Appellate Court below. It has also not been raised in the memorandum of appeal to this Court. The point is this. Reference is made to Sub-rule (3) added by this Court to Order 21, Rule 54, Civil P.C. and to Section 47, Registration Act (16 of 1908) and emphasis is laid on the fact that in the former the word date' is used, whereas in the latter the word used is time'. It is argued that the date' mentioned in Sub-rule (3) of Order 21, Rule 54 must be taken to commence immediately after the midnight of the preceding day and that therefore even though the attachment was made at 9 A.M., it took effect from the commencement of that day after the preceding midnight, whereas the sale deed in favour of the plaintiffs would take effect only from the exact time when it has been found to have been executed, namely 12 o'clock noon, and that therefore the attachment in the eye of the law was effective long before the sale deed was executed. Learned Counsel has sought to support his argument by reference to Section 5(3), General Clauses Act (10 of 1897). That Section however deals with Acts of the Governor-General in Council and lays down that unless the contrary is expressed such Acts shall be construed as coming into operation immediately on the expiration of the day preceding their commencement. We are of opinion that that is a very different matter, and this Section of the General Clauses Act can be of no assistance in the decision of the case before us. Learned Counsel has also referred to certain old decisions of the Courts in England. Those decisions were concerned with the peculiar facts of the cases in which they were given and with the technicalities of pleadings that obtained in those days in England. It seems to us that the argument of the learned Counsel for the appellants, if accepted, will lead to grave injustice in many cases. By Order 21, Rule 54, Sub-rule (1) it is provided that attachment of immovable property 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. Sub-rule (2) provides that the order shall be proclaimed at some place on or adjacent to the property in question by beat of drum or other customary mode, and that a copy of the order shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the Court house, and also, in certain cases, in the office of the Collector of the district. The whole object of the proclamation is that the judgment-debtor as well as other persons may come to know of the order prohibiting the making and taking of any transfers. The argument of the learned Counsel for the appellants leads to the result that a person who has taken a transfer long before the order has been proclaimed and therefore long before he has come to have any knowledge of such an order would be bound by the prohibition contained in the order although he had taken the transfer in complete ignorance thereof. We cannot accept such an argument. In our opinion the word 'date' in Sub-rule (3) of Rule 21, Rule 54, Civil P.C. must be interpreted to mean 'time'.

5. There is another way of looking at the matter. Sub-rule (3) of Order 21, Rule 54, Civil P.C. speaks of the 'date' but makes no provision as to the 'time' from which the order shall take effect as against the persons mentioned therein. Therefore in a case in which the execution of the sale deed as well as the attachment have taken place |on the same date there is no statutory provision for priority between the two. That being so, rules of justice, equity and good 'conscience must be followed. On the facts found by the lower Appellate Court in this case it is clear that the plaintiffs took the male deed in complete ignorance of the execution application made by the appellants and the order for attachment obtained by thorn. It has been found by both the Courts below that the sale deed is for valid 'consideration. It has also been found by the Court below that the appellants, having come to know that a sale deed was going to be executed in favour of the plaintiffs, took improper proceedings with the object of stealing a march over the latter. In these circumstances justice is clearly on the side of the plaintiffs-respondents. For the reasons given above we dismiss this appeal with costs.


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