1. Plaintiff is the appellant against the reversing decree of the learned appellate court dismissing his suit. Defendants 1 to 3 are the natural uncles of the plaintiff and defendant No. 1 is, besides, the plaintiff's father-in-law. Defendant No. 4 is the decree-holder in Execution Case No. 93 of 1958 arising out of Money Suit No. 139 of 1950 in which defendant No. 4 was the plaintiff and defendants 1 to 3 and another (dead) were the defendants.
In course of the proceeding of the suit, defendant No. 4 got certain landed properties of defendant 1 and 2 attached on 23-9-50 on the allegation that these defendants were trying to transfer them away to the plaintiff with a view todeprive him of Ms dues. About four months after the said attachment before judgment, the plaintiff got a registered sale deed from defendants 1 and 2 in respect of the suit land measuring 4.01 acres for consideration of Rs. 1000/-. In course of the execution proceeding, the plaintiff abortively put forward his claim based on the said sale. So the plaintiff brought the suit under appeal for declaration of title and recovery of possession.
2. The plaintiff impeached the attachment before judgment as invalid due to certain irregularities. Defendant No. 5, who was the only contesting defendant in the suit and who was the auction purchaser of the attached lands including the suit plot, contested the plaintiff's claim on the grounds that the attachment was valid, and that the sale, subsequent to attachment by defendants 1 and 2 in favour of the plaintiff, was collusive and without consideration.
3. The learned trial court found that the sale in favour of the plaintiff was genuine and for consideration; and that the attachment was invalid and so it passed a decree in favour of the plaintiff. The learned appellate court held that the attachment was invalid; but it was of the view that the sale was collusive and without consideration, and as such no title passed to the plaintiff. So, it dismissed the plaintiff's suit.
4. The contentions of the appellant before us are that defendant No. 5 (the contesting respondent) being a third party to the sale, could not legally question whether consideration passed or did not pass; that there were no sufficient grounds for the learned appellate Court to turn aside the finding of the learned trial court that consideration did in fact pass in the sale; that the learned appellate court relied, for its reversing finding, on an inadmissible document Ext. E, and that further it did not take into consideration the evidence of one of the P. Ws., the attesting witness to the sale deed, on whom the learned trial court had relied.
The contentions on the respondent's side were that the attachment was valid irrespective of the irregularities considered by the courts below, and as such the subsequent sale of the suit land in favour of the plaintiff was void under Section 64, C. P. C.; and that the auction purchaser as the representative-in-interest of the judgment-debtors could raise the question of passing of consideration; and further that the finding of the learned appellate Court, on the point of passing of consideration, was a correct finding.
5. It is a well established principle that the passing of consideration cannot be challenged except by the parties to the transaction Or by those who claim through such parties. All that passes at a Court auction is the right, title and interest of the judgment debtor in favour of the auction purchaser, and so defdt. No. 5, the auction purchaser, necessarily claims through defendants 1 and 2 who sold the suit land to the plaintiff. If the auction sale is valid, then Mr. Rao's contention that the contesting respondent could not challenge the passing of consideration cannot be accepted.
On the other hand, if the attachment before judgment is invalid and consequently the auction sale, then no title of the judgment-debtors passes to the auction purchaser and the latter cannot bo said to claim through the judgment-debtors, and so he cannot question the passing of consideration between the judgment-debtors and the plaintiff. It the attachment before judgment was valid, then the subsequent sale in favour of the plaintiff, irrespective of passing of consideration, was void. If the attachment was invalid, then defendant No. 5 was not successor-in-interest of the judgment-debtors and so he could not challenge the passing of consideration. Hence the moot question in the case is whether the attachment was valid and the question of whether consideration passed, did not arise for a decision in either way.
6. Regarding the attachment before judgment the learned appellate Court found that on the basis of an affidavit filed by defendant No. 4 (the then plaintiff in the money suit) the court issued notice under Order 38, Rule 5, C. P. C. and also issued a conditional order of attachment; that the notice was served by the process-server C. W. I on the defendants in the said suit and the land was attached on the spot where a copy of the notice was hung, and there was due proclamation made by beat of drums. There was no evidence about affixure of the copy of the proclamation in the Collector's Office, and this the learned appellate court did not consider to be a serious irregularity vitiating the attachment.
The learned appellate Court however observed that other steps that were necessary to be taken under Order 21, Rule 54, C. P. C. were not taken and in that condition, without detailing what were those other steps not taken, it only referred specifically to the absence of prohibitory order against the defendants in that money suit prohibiting them from alienating the properties. On this ground it held that the attachment was invalid.
7. Order 38, Rule 7 C. P. C. provides that in case of attachment before judgment, save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. Order 21, Rule 54 C. P. C. provides that 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; 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 place 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 inwhich the land is situate.
In the present case, there is the finding of the learned appellate Court, based on oral and documentary evidence, that the attachment was made on the spot; that a copy of the writ of attachment was affixed on a conspicuous part of the property; and that proclamation was made by beat of drums. Regarding the other requirements under Order 21, Rule 54, C. P. C., no evidence was adduced as to whether a prohibitory order had been passed on defendants 1 to 3 and whether any copy of the order was affixed at the court-house and also at the office of the Collector.
The plaintiff got exhibited only some selected orders of the Court from here and there and not the whole record of the case relating, to attachment before judgment, so as to throw light as to what had been really done and what had not been done, In the absence of any positive proof to the contrary, the normal inference would be that all the procedure prescribed by law was followed in making the attachment. In AIR 1934 P. C. 217 (Md. Akbar v. Mian Musharaf Shah) their Lordships observed:--
'The Judicial Commissioner in the present case has held that the attachment has not been proved because there was no direct evidence that a copy of the order of attachment was fixed in the Collector's Office. Their Lordships are of opinion that there is evidence that the land was attached, and that in the absence of any evidence to the contrary, it ought to be presumed (under Section 114 of the Evidence Act) that all necessary formalities were complied with.'
In AIR 1931 Cal 763, Kiernander v. Benimadhab their Lordships held,
'When there is no positive evidence that the attachment is not effected in accordance with law, the presumption that attaches to official acts as regards their regularity cannot be ignored.'
As I have already observed, there is no positive evidence in the present case that some of the procedures laid down in order 21, Rule 54 C. P. C. were not followed in the attachment proceeding. So, the question of attachment being invalid on account of non-observance of certain procedural laid down by Order 21, Rule 54 C. P. C. did not arise.(8) Even if there Were certain irregularities in making the attachment, they cannot go to. make the attachment a nullity. In AIR 1945 Nag 97, Dhian Singh v. Secretary of State, their Lordships, after making a thorough discussion on the principles, observed:
'No universal rule can be laid down whether an enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get the real intention of the legislature by carefully attending to the whole scope of the statute to be construed. In each case the court must look to the subject matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act and upon a review cf the case in that aspect decide whether the enactment is what is called imperative or only directory. If the object of the statute is not one of general policy or if the thing which is being done will only benefit a particular person or class of persons then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law quilibet potest renunciare juri pro se introducto that any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favour. 'Where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and Government of those on whom the duty is imposed, or, in other words, as directory only'. (Maxwell on the Interpretation of Statutes, 8th Edition, page 326). Whether Order 5 of Rule 38 ia mandatory or directory has to be gathered from the nature of the general scheme of the Civil Procedure Code. Section 99 of the Code says that no decree is to be reversed or substantially varied ior any error, defect or irregularity in any proceedings in tbe suit, not affecting the merits of the case or jurisdiction of the Court. That shows that unless there is error, defect or irregularity in any proceedings in the suit, which is material, that irregularity does not affect the decision of the Court. The principle so enunciated generally in regard to the decree should ordinarily apply to orders particularly interlocutory orders such as attachment before judgment in view of Section 141 of the Code .....Itis now well settled that even omission to attach property before sale does not invalidate the sale. Rule 5 of Order 38 C. P. C. is intended for the protection of the person whose property is sought to be attached before judgment. If he did not receive notice required by law and was consequently denied theprivilege of staying off the attachment, by the offer of security, the injury would no doubt accrue to him; but the law ives him a remedy by way of appeal under Order 43, Rule 1 (q) from such an irregular order to get it set aside. The person affected in this case did not care to take recourse to that remedy and acquiesced in that order....
'This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived'..... Jurisdiction isentirely independent of the manner of its exercise. The distinction between the two is that error of judgment is reversible by the appellate court within a certain fixed time and is therefore voidable, whereas the usurpation of power is a mere nullity. The jurisdiction of the court to attach property before judgment is indicated by the words 'if so prescribed' in Section 94, and that condition is satisfied when rules are made to order attachment of any property of the defendant ..... The other provisions made in Rules 5 and 6 of Order 38 must be interpreted as laying down the manner in which the Court's jurisdiction is to be exercised and accordingly regarded as dealing with the matters of procedure regulating the mode of exercise of a jurisdiction that exists.
On this view any error in the manner of the exercise of the jurisdiction conferred by Section 94 would not affect the validity of the Court's act it the court's jurisdiction is derived from a source independent of the provisions which merely prescribe the manner of its exercise. Inasmuch as the Court has jurisdiction to order an attachment before judgment it would, prima facie, be regarded as valid and operative unless it is set aside in the manner provided by law by the party prejudicially affected by it. An irregular attachment would thus amount to a voidable act, but in no case would it be a nullity.....The Court's act of attachment is in itsnature such as would affect the interest of innocent third parties if it is declared invalid. Consequently the case is one which would attract the application of rule enunciated by Maxwell on the Interpretation of Statutes at page 326 referred to above. Judged in the light of that principle also, Rule 5 of Order 38, C. P. C. would have to be regarded as merely directory.'
With great respect, I am in entire agreement with the aforesaid observations of the Nagpur High Court, and so I would hold that even if there were certain omissions in the matter of observing the formalities in making the attachment, the attachment was not invalid.
9. The attachment being held to be valid, the subsequent sale in favour of the plaintiff-appellant is void under Section 64, C. P. C. So, the other question, as to whether consideration passed in respect of the purchase made by the plaintiff, doeg not strictly arise for my determination. If a finding would have been necessary on this point, I would support the finding of the learned appellate Court that in fact no consideration passed.
No doubt, the learned appellate Court wrongly relied upon Ext. E--a petition filed by defendantNo. 1 in the execution proceeding at one stage, in which he admitted that no money had been paid to him by the plaintiff -- since that document was inadmissible, inasmuch as it did not amount to any admission on behalf of the plaintiff and it came under no other section of the Evidence Act, to be admissible in evidence, being a statement of a person not examined as a witness and made out of court. But that apart, the learned appellate court depended upon other strong circumstances to discredit the passing of consideration and the learned trial court had not taken those circumstances into consideration.
(1) The plaintiff was a very close relative of defendants 1 to 5.
(2) The sale deed did not refer to any pressing circumstances, for which defendants 1 and 2 soughs to alienate the suit plot and no oral evidence was adduced on that score.
(3) The sale was entered into shortly after the land had been attached.
(4) Though the plaintiff purchased the suit land in the beginning part of 1951, it has been admitted by him that he sold away his ancestral properties within one year thereof for Rs. 1600/-as he could not redeem it from mortgage for Rs. 800/-, indicating the financial position of the plaintiff.
(5) The plaintiff was a witness for defendants 1 to 3 in Money Suit (which the plaintiff went to the extent of denying) and there he had stated that prior to his purchase, the suit plot had been mortgaged to him for Rs. 900/- and defendant No. 4 had undertaken to pay him the mortgage money out of the loan which formed the subject-matter of that suit; and that on defendant No. 4's failing to do so, he came into possession of the suit plot sometime in 1949. On the contrary, in his evidence in the present suit, the plaintiff claimed to be in possession of the suit plot as a mortgagee since 1945, and that for a consideration of Rs. 250/-. Thus, regarding the quantum of the mortgage money and the period of his possession, the plaintiff's evidence in the money suit and his present evidence stood widely apart, and besides no such case of mortgage was referred to in the sale deed or in the plaint.
(6) When the consideration money was said to be said fully in cash at the time of the execution of the sale deed and the sale deed was, immediately after, presented for registration, normally in such a case the passing of consideration was likely to take place before the Sub-Registrar,
10. Though P. W. 4 the scribe of the sale deed, who referred to the passing of consideration in cash, became subsequently a muktear, the learned appellate court has rightly put no much weight to his evidence, because P. W. 4 was throughout acting on behalf of defendants 1 to 3 in resisting the claim of defendant No. 4. This witness was very hesitant to admit some of the documents like Exts. C and E, lending some support to defendant No. 5's case, to be in the signature of defendant No. 1, although otherwise he claimed to be well acquainted with the signature of defendant no. 1 and proved many other similar documents on the plaintiffs side on that score.
As to P. W. 3, the other witness regarding passing of consideration, the learned trial court observed that nothing had been suggested to discredit his evidence and the learned appellate court had not at all taken his evidence into consideration. It is sometimes difficult to attribute any exact motive to a witness for his deposing falsely. This witness claims to be very well acquainted with defendants 1 to 3 and their affairs and he wasspecifically invited by defendants 1 to 3 to be an attesting witness to the sale deed. In that perspective, when this witness claims ignorance of the relation of the plaintiff with defendants 1 to 3, which even if he was unaware previously he would have come to know at the time of the execution of the sale deed, he appears to be prima facie unreliable.
11. It has been observed in AIR 1960 SC 113, Radha Prasad Singh v. Gajadhar Singh.
'When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of appeal is in as good a position as the trial judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.'
The learned appeal court, in coming to a different finding on the passing of consideration, appears to have acted within the aforesaid dictum.
12. In the result, I find no merit in the present appeal which is accordingly dismissed with costs.
13. I agree.