JOSEPH Vs. SCARIA

JUDGEMENT

(1.) THE first question urged before me is that there was no valid attachment in O. S. No. 536 of 1100 and therefore the mortgage in favour of Venkiteswara Iyer and the suit and further proceedings in pursuance thereof must be allowed to stand and the purchaser of the property in court auction should be allowed to take possession of it. THE invalidity of the attachment is claimed to rest on the facts that the attachment was not effected in accordance with 0. 21, R. 54 of the Code of Civil procedure. Ext. D5 is the report of the amin who made the attachment; and the contention is that since Ext. D. 5 does not disclose compliance with R. 54, 0. 21 of the Code, it must be held that the attachment is not valid. Such a plea was not taken before the trial court, nor was it taken in the memorandum of appeal before the lower appellate court. It was urged for the first time only at the stage of arguments before the lower appellate court.

(2.) THE learned counsel of the appellant cites decisions like Derajat Bank Ltd. v. Mt. Sardar Bibi (A. I. R. 1937 Lah. 671) and Firm maidatt Manak Chand v. Mt. Lachho (A. I. R. 1939 Lah. 284) for the proposition that no property can be declared to be attached, unless the order for attachment has been issued and in execution thereof the other things prescribed by the rules in the Code of Civil Procedure have been done; and also for the proposition that where the process-server's report about the attachment does not show that a copy of the order was posted on a conspicuous part of the court-house, the initial presumption is that what is not mentioned therein was not done and that the report is sufficient to shift the onus to the one who claims that a valid attachment was effected. THEse propositions may be correct; but they do not arise in this case. THE factum of attachment cannot be denied in this case because there is Ext. D5, the report of the amin. THE question is only whether the amin complied with the formalities of Rs. 54, of 0. 21 of the Code. In such a case the observation of the Privy Council in Mohammed Akbar Khan v. Mian Musharaf Shah (A. I. R. 1934 P. C. 217) that where there is evidence that the land was attached, in the absence of any evidence to the contrary, it ought to be presumed that all necessary formalities were complied with. THE learned counsel of the appellant tries to distinguish this case; and he invites my attention to Murugappa Chettiar v. Thirumalai Nadar (A. I. R. 1948 Mad. 191 ). I do not think that that decision will serve that purpose. In that case the order for attachment was merely pending; and that there was no evidence that the order was actually issued and that the formalities of attachment were complied with. In the case before me the attachment was actually effected; and the question is only whether the formalities for a valid attachment were complied with. In such a case, unless there is evidence contra to the effect that the formalities were not complied with, it must be presumed, as observed by the privy Council, that all the necessary formalities were complied with.

(3.) THE next ground urged is that the earlier judicial sale, in which the appellant's predecessor purchased the property, released the attachment and the benefit of such release must go to the appellant. THE discussion hereinbefore has already shown that the benefit must go to the attaching creditor and not to the subsequent purchaser in court auction, who purchased at a court sale pursuant to the subsequent mortgage. THErefore, this contention has also no force.