1. This appeal arises out of a suit for declaration of the plaintiff's title by auction-purchase to the lands described in the plaint consisting of a tank and a bamboo garden and for recovery of khas possession thereof and for mesne profits from the defendants. The plaintiff brought a suit in 1929 upon a hand-note against one Khirode Nath Kuila and caused the lands in suit to be attached before judgment in the suit. The suit was decreed on compromise, but as the decretal amount was not paid the decree was executed and the lands were put up to sale and purchased by the plaintiff on 30th April 1932. Delivery of possession was taken on 28th November 1932. The plaintiff alleges that the defendants dispossessed him on 13th February 1933. The defendants' case is that one Ram Krishna Samanta got a decree on a hand-note against Kshirode Nath Kuila and purchased the lands having attached the same before judgment on 5th November 1927. The decree was passed in his favour on 30th November 1927 and in order to pay off the decretal amount the judgment-debtor Kshirode sold the lands on 16th March 1930 to the defendants and paid off the decretal amount in that suit. The decree obtained by the plaintiff was passed on 28th May 1930 and the properties were auction-purchased by him on 30th April 1932 as already mentioned.
2. The only point raised in this appeal is as to whether the attachment before judgment made by the plaintiff on 4th July 1929 was a valid attachment. If that is a valid attachment then it invalidates the subsequent purchase by the defendants on 16th March 1930. But unless there was a valid attachment, the purchase by the defendants which had preceded the purchase by the plaintiff, must be given effect to. The finding of the Court below is that an order of attachment in form No. 5 of appendix F under Order 38, Rule 5, was published by beat of drum and a copy of it was fixed on the properties. But there was no publication of attachment in the form laid down under Order 21, Rule 54, namely, in form No. 24 of appendix B. Attachment under Order 38, Rule 5, is to be made in accordance with the manner provided for attachment of properties, in execution of a decree, and the manner for attachment of property in execution of a decree is laid down in Order 21, Rule 54. The Courts below having held that no notice in form No. 24 of appendix E, was published and fixed on the properties there was no valid proclamation or attachment. Since Order 21, Rule 54, lays down that the attachment is to 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. It further lays down that the order is to be proclaimed in some place adjacent to the property by beat of drum and a copy of the order is to be fixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house.
3. Inasmuch as the conditional attachment under Order 38, Rule 5, was made and inasmuch as the order sheet shows that there was an attachment before judgment, it is contended that under the provisions of Section 114, Evidence Act, it must be presumed that the necessary formalities for attachment before judgment had been actually carried out; and therefore it must be presumed that the publication of the order prohibiting the transfer of the property as laid down in Order 21, Rule 54, had actually been made and a copy affixed to the properties. In Bharat Chandra v. Gouranga Chandra : AIR1927Cal885 however it, is laid down that proclamation by beat of drum and affixing on the property a copy of the order in form No. 5, Appendix F, does not constitute an attachment under the Code of Civil Procedure. In view of this ruling it must be held that unless a presumption under Section 114, can be raised so as to hold that the proclamation was made and other formalities carried out in the manner prescribed in Order 21, Rule 54, it must be held that there was no valid attachment. Section 114, Evidence Act, lays down the rule as to the existence of any fact which the Court thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case; and under Illus. (e) the Court may presume that judicial and official acts have been regularly performed. The Courts in this case have held that in this case there can be no such presumption as there is no reference in the order sheet of the issue of notice under Order 21, Rule 54, and the, order sheet shows only that a notice was issued on the defendant directing him to show cause within seven days from the date of service of the notice why the properties mentioned in the petition should not be attached unless the defendant furnishes sufficient security. After this, it was ordered as follows: 'Let in the mean-while these properties be conditionally attached till the hearing of the matter'. The next order reads as follows: 'Attachment notice of summons served. Service of notice of summons not proved'. A number of subsequent orders was passed showing that the suit was finally decreed on compromise. The compromise decree shows that the properties remained under attachment; and since there is no order showing that the decretal amount was paid and attachment withdrawn, it must be held that in fact the attachment under Order 38, Rule 5, was continuing at the time of the purchase by the plaintiff. It is pointed out that the trial Court was influenced by the fact that a copy of the writ of attachment in form No. 24, Appendix E, was not produced.
4. It is suggested for the appellant that in fact this copy would have been destroyed under the rules before the institution of the suit; but in view of the fact that Section 114 lays down merely that the Court may presume that judicial and official acts have been regularly performed, and is view of the form of order recorded in the order sheet where there is no reference to Order 21, Rule 54, or to publication of any attachment order in the form required by the section, it is difficult to presume that the attachment, as required by the provisions of Order 21, Rule 54, was made. The learned District Judge has pointed out that in the cases cited before him in support of the argument that it should be presumed in the absence of any evidence to the contrary that the procedure of attachment was legally carried out there was evidence to show that there had been issue of prohibitory order restraining the defendant from transferring the property. The lower appellate Court appears to have given due consideration in the matter, and under Section 114, the learned Judge need not make the presumption that the attachment was legally made. On the finding that there was no order forbidding the transfer of the properties and that no copy of a notice to that effect was attached to the properties it must be held that there was no legal attachment and that the properties in suit were purchased by the defendants before they were purchased by the plaintiff and therefore the defendant had good title. This appeal must accordingly be dismissed with costs. Leave to appeal under Section 15 of the Letters Patent has been asked for, but that leave is refused as I do not consider this to be a fit case for such appeal.