KRISHNA CHIT FUNDS SATTUR PRIVATE LIMITED SATTUR HAVING ITS OFFICE AT DOOR NO 19 PILLAIYAR KOIL ST SATTUR TOWN AND TALUK Vs. R S PILLAI

JUDGEMENT

(1.) AGGRIEVED by the orders in E.A. No. 38 of 1999 in E.P. No. 87 of 1999 in O.S. No. 18 of 1997 on the file of Subordinate Judge, Sivakasi, which was confirmed by the Principal District Judge, Srivilliputhur in C.M.A. No. 34 of 1999, the appellant has filed the above second appeal before this Court.

(2.) THE case of the appellant is briefly stated hereunder: THE appellant Sri Krishna Chit Funds purchased the suit property in dispute from the 2nd respondent herein for valuable consideration on 24.12.97. THEy were put in possession and enjoyment of the said property even on the date of sale. THE appellant is continuing in possession of the suit property, it is stated that the first respondent herein filed a suit in O.S. No. 18 of 1997 against the 2nd respondent, herein and obtained attachment before judgment of the-said-property belonging to the 2nd respondent. THE appellant was not aware of the said attachment before judgment. THE appellant as a bona fide purchaser made enquiries and perused encumbrance certificate. THE Encumbrance certificate obtained did not disclose the attachment before judgment. When the sale proclamation was sought to be affixed in the suit property, the appellant came to know about the sale before judgment. THErefore, they filed E.A. No. 38 of 1999 in E.P. No. 87 of 1999 in O.S. No. 18 of 1997 on the file of Subordinate Judge, Sivakasi. THE trial-court as well as the appellate court on an erroneous view of law and facts dismissed their application as well as appeal, against which they filed the present second appeal before this Court. THE appellant had proved that the attachment before judgment did not find a place in the encumbrance certificate and mandatory provisions contemplated under Order 38, Rule 11 (b) and Order 21, Rule 58A of the Code of Civil Procedure were not complied with. THE appellant had also discharged the loan and the consideration for Sale-deed had paid. THE attachment before judgment was not disclosed at the time of sale and they are a bona fide purchaser.

(3.) BEFORE considering the rival submissions, I shall refer the substantial questions of law determined by this Court while entertaining the second appeal on 11.2.2000. "1) Whether both the Courts below failed to note that the appellant is a bona fide purchaser for value and that the appellant was not aware of the attachment before Judgment", 2) Whether both the Courts below failed to note that the mandatory provisions contemplated under Order 21, Rule 58 (A) and Order 38, Rule 11 (B) C.P.C. was not complied with"" I have already stated that in respect of a money claim, the first respondent herein filed a suit in O.S. No. 18 of 1997 on the file of Sub Court. Srivilliputhur and that pending suit. he also filed I.A. No. 117 of 1997 for attachment before judgment of the suit property. It is further seen that the second respondent did not contest the said application; consequently the attachment order was granted and the application was also closed. Further, on the basis of the endorsement made by the second respondent, the trial Court decreed the suit in O.S. No. 18 of 1997 on 19.9.97. The Court below has also granted 6 months" time to the second defendant to pay the decree amount. Accordingly, it is clear that the attachment order passed on 14.3.97 was in force. By Ex.P-1, the appellant herein purchased the very same suit property on 24.12.97. Now I have to consider whether there was a valid attachment order and if so, the same was communicated to the concerned office of the Sub Registrar" Incidentally I have to c onsider whether the appellant. Herein was a bona fide purchaser for value and whether he had the knowledge of attachment order of the sub court. Now I shall refer the relevant provisions regarding the order of attachment. As per Section 64, C.P.C., where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein-shall be void as against all claims enforceable under the attachment. Order 21, Rule 54, C.P.C. speaks about attachment of immovable property. It is as follows:- "Order 21, Rule 54. Attachment of immovable property, - (1). Where the property is immovable, the attachment shall be made by an, order prohibiting the judgment-debtor from transferring or charging the property in anyway, and all persons from taking any benefit from such transfer or charge. (1 A) The order shall also require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. (2) 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 part 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 in which the land is situate, and where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. HIGH COURT AMENDMENT (MADRAS): (i) Substitute the following for sub-rule (2): "(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house, Where the property is land paying revenue to the Government, a copy of the order shall be similarly affixed in the office of the Revenue "Divisional Officer of the area where the land is situated. Where the property is situated within Cantonment limits the order shall be similarly affixed in the office of the Local Cantonment Board and the Military Estates Officer concerned, and where the property is situated within the limits of a Municipality, in the office of the Municipality within the limits of which the property is situated." (ii) Add the following as sub-rule (3): "(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2), whichever is earlier." Order 21, Rule 58 relate to adjudication of claims to, or objections to attachment of property. As per sub-rule (2), all questions arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. Order 21, Rule 58-A speaks about communication of the order of attachment to the Registering Officer. "58-A. Order of attachment to be communicated to the Registering Officer:-Any order of attachment passed under Rule 54 of this Order raising the attachment by removal, determination of release passed under Rules 55, 57 or 58 of this Order, shall be communicated to the Registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate." (Amendment dt.29.6.1987) Order 38, Rule 11 says that the property attached before judgment not to be re-attached in execution of decree. As per Rule 11 A, the provisions of this Code applicable to an attachment made in execution of a decree shall apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11. Here again, Rule 11-B speaks about communication of order of attachment to the Registering Officer. It reads thus:- "Rule 11-B. Order of attachment to be communicated to the Registering Officer,-Any order of attachment passed under Rule 5 or 6 of this order raising the attachment passed under Rule 9 of this order shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order, is situate. "(Amendment dated 29.6.1987)" When an order of attachment of immovable property is made before judgment, certain procedures have to be complied with as per sub-rule (2), Order 21, Rule 54. The order of attachment has to be proclaimed at some place on or adjacent to such property by beat of drum and a copy of the order shall be affixed on a conspicuous part 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 in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any having jurisdiction over that village. Though an order has been made for attaching the property in question before judgment even on 14.3.97, no one has appeared and explained before the Sub Court regarding compliance of sub-rule 2 referred to above. As a matter of fact the claimant namely appellant herein alone was examined as P.W.1 and no one was examined on the side of the respondents. As per amendment to Order 21, Rule 58 made by this Court (Amendment dated 29.6.1987), the order of attachment passed under Rule 54 raising the attachment by removal, determination or release passed under Rules 55, 57 or 58 shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property under attachment comprised is situate. Similar provision is brought in on the same term in Order 38, Rule 11-B. The reading of the Madras High Court Amendment in Order 21, Rule 54 would show that the attachment order has to be proclaimed at some place on or adjacent to such property by beat of drum and a copy of the order shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court-house. If the property is land paying revenue to the Government, a copy of the order shall be affixed in the office of the Revenue Divisional Officer of the area where the land is situated. Where the property is situated within the limits of a Municipality, the order shall be affixed in the office of the Municipality within the limits of which the property is situated. Likewise, High Court amendment namely Rule 58-A authorises the Court that any order of attachment passed under Rule 54 raising the attachment by removal, determination or release passed under Rules 55, 57 or 58 of this Order, shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate.