RAMESAN Vs. KUNHIPALU

JUDGEMENT

(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 O.21 R.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 invalid because 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 Subordinate 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 bearing 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 in 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.