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Ramesan Vs. Kunhipalu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1137 of 1971
Judge
Reported inAIR1977Ker119
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 54 and 54(2); Evidence Act, 1872 - Sections 114
AppellantRamesan
RespondentKunhipalu and ors.
Appellant Advocate T.S. Venkiteswara Iyer,; P.K. Balasubramonyan and; P.E.
Respondent Advocate A. Achuthan Nambiar,; T.P. Kelu Nambiar,; M.B. Kurup
DispositionAppeal allowed
Cases ReferredPillai v. Padmavathi Ammal
Excerpt:
- - from these provisions it is dear that the formalities referred to in sub-rule (2) have alsoto be satisfied before an attachment can be considered to be complete. section 114 of the evidence act is clearly attracted to the case......property. it is said that copy of the order of attachment was not affixed in the concerned municipal office as required by order xxi, rule 54 (2) of the civil procedure code. the matter arose in execution and this way: on resistance offered by the respondents who are purchasers of the property from the judgment-debtor, after the decree, which was one for money, the appellant who purchased the property from the decree-holder-auction purchaser applied for delivery of possession of it after removal of obstruction. resistance offered was mainly on the ground that the court-sale was invalidbecause there was no proper attachment. the attachment was one made before judgment but made absolute on the date of the decree. the subordinate judge, trichur, before whom the objection regarding.....
Judgment:

Narayana Pillai, J.

1. The question raised here relates to attachment of an item of immovable property. It is said that copy of the order of attachment was not affixed in the concerned Municipal Office as required by Order XXI, Rule 54 (2) of the Civil Procedure Code. The matter arose in execution and this way: On resistance offered by the respondents who are purchasers of the property from the judgment-debtor, after the decree, which was one for money, the appellant who purchased the property from the decree-holder-auction purchaser applied For delivery of possession of it after removal of obstruction. Resistance offered was mainly on the ground that the court-sale was invalidbecause there was no proper attachment. The attachment was one made before judgment but made absolute on the date of the decree. The subordinate Judge, Trichur, before whom the objection regarding attachment was raised overruled it but it found favour with the Additional District Judge, Trichur. who heard the appeal from the order of the Sub-ordinate Judge.

2. Report of the Amin was that the attachment as ordered was actually effected and in the face of that the Subordinate Judge was of the opinion that it had to be presumed that all formalities connected with the attachment were complied with. The Additional District Judge who after hearing the appeal called for records on the trial side from the Subordinate Judge's court to find out whether there was really affixture of a copy of the order of attachment in the Municipal Office, received from that court four records including the Fair Copy Register and was informed that the other relevant records could not till then be found. The, Fair Copy Register contained entry that copies of the attachment order were sent to the Munsiff and Tahsildar, Trichur, but there was no similar entry in it that the same was sent to the Municipality. It was from that sole circumstance that the Additional District Judge inferred that there was no affixture of copy of the attachment-order is the Municipal Office.

3. Now, from the mere omission of entry in a Register about despatch of communication to the Municipal Office it cannot be inferred that no communication was actually sent to the Municipal Office. Further the Additional District Judge was not right in entering a finding on that matter when all the relevant records connected therewith had not been received by him From the Subordinate Judge's Court and without affording opportunity to the appellant's counsel to offer his explanation even in respect of the records received from the Subordinate Judge's Court.

4. The making of attachment is by issue of an order prohibiting the judgment debtor from transferring or charging the property as provided in Order XXI, Rule 54 (1) C. P. C. Sub-rule (2) of that rule directs proclamation of that order in the property attached or at a place adjacent to it and affixture of copies of the order on the property attached and in the court house. The sub-rule further directs affixture of copies of the order in the concerned village or Taluk Office and in the concerned Municipal or Panchayat Office. From these provisions it is dear that the formalities referred to in Sub-rule (2) have alsoto be satisfied before an attachment can be considered to be complete.

5. When a dispute arises as to whether the formalities regarding attachment were complied with presumption under Section 114 of the Evidence Act regarding regularity of performance of judicial and official acts can be drawn. But then it can be done only if attachment is actually proved by the Amin's report or otherwise,

6. Mohammad Akbar Khan v. Mian Musharaf Shah AIR 1934 PC 217 is a decision of the Privy Council directly bearing on this matter. In that case the fact that attachment was actually made was proved but there was no direct evidence that a copy of the order of attachment was affixed in the Collector's Office. It was held that in the absence of evidence to the contrary it had to be presumed On the basis of Section 114 of the Evidence Act that all necessary formalities connected with the attachment were complied with. This decision was followed by the Orissa High Court in Ratha Harijaa v. Narasingha Rana, AIR 1961 Ori 22.

7. In an earlier decision, A.T.K.P.L. M-Muthiah Chetti v. Palaniappa Chetti, AIR 1928 PC 139, the Privy Council said that a property could not be declared as attached unless besides the passing of the order of attachment under Sub-rule (1) the formalities regarding proclamation and affixture of the copies of the order mentioned in Sub-rule. (2) were also complied with. But in that case there was no evidence as in the later case that attachment had in fact been made. The Privy Council did not lay down in that case that when it was proved that attachment was made it was not permissible for the court to presume that all formalities referred to in Sub-rule (2) of Order XXI Rule 54 were complied with.

8. Murugappa Chettiar v. Thirumalai Nadar AIR 1948 Mad 191 and Padmavathi Ammal v. M. Maruthachdam Pillai (1966) I Mad LJ 413 are two decisions of the Madras High Court. In both those cases the attachments alleged were held to be not properly proved. In the earlier case there was no report of the officer of the court that attachment had actually been effected by him. In the later case proclamation of the order of attachment and affixture of copies of the order on the property and in the Municipal Office were all in controversy and evidence was let in by both sides regarding them. After dealing with that evidence it was found that there was neither proclamation nor affixture of copies of the order of attachment at the necessary places. Hence it was thatit was held there that there was no proper attachment. That decision was affirmed by the Supreme Court in appeal in M. Marutha-chalam Pillai v. Padmavathi Ammal (1970) 2 SCWR 174. As both sides let in evidence no question of raising presumption under Section 114 of the Evidence Act arose in that case and it was not considered also by the Supreme Court in appeal.

9. The facts of the present case are different. Here there is the Amin's report that attachment was actually effected. Section 114 of the Evidence Act is clearly attracted to the case. In the absence of evidence to the contrary it has to be presumed that all the necessary formalities, including affixture of copy of the order of attachment in the Municipal office, were complied with.

10. In the result this appeal is allowed with costs.


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