PADMAVATHI AMMAL Vs. M. MARUTHACHALAM PILLAI AND ORS.

JUDGEMENT

(1.) This appeal is against the judgment of the learned Subordinate Judge of Ootacamund, dismissing the Plaintiff's suit, wherein was claimed inter alia relief of declaration of Plaintiff's title to the suit properties, and possession and mesne profits The appeal raises the interesting question as to when an attachment of immovable property could be said to have been made to make void a private alienation of the property under Sec. 64 of the Code of Civil Procedure and whether all the requirements of Order XXI, Rule 54 of the Code of Civil Procedure as amended in this State have to be complied with for the attachment to have the effect of invalidating private sales. The question does not present much difficulty, and as we see it, is covered by a catena of decisions of this Court and other Courts, all requiring punctilious adherence to the requirements of Order XXI, Rule 54 of the Code of Civil Procedure. As learned Counsel appearing for the contesting Respondent sought to distinguish particularly the decisions of this Court and draw a line of distinction as to mandatory and directory provisions in procedure, we shall examine the question a little more in extenso -than will be strictly necessary.

(2.) We shall first discuss the material facts and findings on which there is -contest and which now survive for consideration. The suit property is a bungalow known as Lansdowne, bearing door No. 284 with outhouses bearing; door No. 285 with sub -divisions therein, in Ward No. 12 within the municipal limits of Ootacamund, situated in R.S. No. 3688, of an extent of 4 acres and. 15 cents. The second Defendant in the suit, out of which this appeal arises, was the admitted owner of the property, and the Plaintiff, the Appellant herein, claims the property under a conveyance in her favour, dated 19th. October 1956, evidenced by the registered sale deed, exhibit A -10 for a consideration of PvS. 15,000. The first Defendant in the suit, who is the contesting; first Respondent in this appeal hereinafter referred as Respondent is a money decree -holder, who obtained a decree against the second Defendant on 11th April 1956 for a sum of Rs. 3,046 in Original Suit No. 10 of 1956, on the file of the Subordinate Judge's Court, Ootacamund, the second Defendant herein being the fourth Defendant in that suit. Pursuant to the decree, the first Defendant claims to have attached the property in E.P.R. No. 329 of 1956, the attachment being effected on 4th August 1956, and purchased the property in Court auction on the said attachment on 3rd February 1958 for Rs. 12,005. The sale was confirmed in the usual course on 7th March 1958, exhibit B -6 dated 7th March 1958, being the sale certificate. As the property was in the possession of tenants, who in fact, had attorned to the Plaintiff and were paying rents to her, the first Defendant secured symbolic delivery of the property. There was obstruction against delivery, when the Plaintiff came to -know of the delivery proceedings, and the Plaintiff came forward with this suit after the petition filed by her to accept her obstruction, Execution Application No. 231 of 1958, was dismissed. While in the pleadings the Plaintiff had attacked the decree which the first Defendant had obtained against the second Defendant as fraudulent and collusive, and the first Defendant attacked the sale in favour of the Plaintiff as not genuine or supported by consideration now before us, no serious argument was attempted by either party on these aspects.

(3.) The trial Court has found that consideration passed for the sale in favour of the Plaintiff and, in fact, has given a decree against the second Defendant for a sum of Rs. 16,250, while dismissing the suit against the first Defendant. There is evidence to show that the Plaintiff's father, who has given evidence as P.W. 6, was in charge of the negotiations for the purchase of the property in favour of the Plaintiff, that Messrs. Mathew & Mathew, Advocates, Ootacamund, advised them with reference to the purchase and that on the purchase the Plaintiff entered into possession, the tenants on the property atoning to the Plaintiff. R.F. Stoney, a retired Chief Engineer, who has been a tenant of the property for over twenty -four years, has given evidence as P.W. 1. He had been paying rents direct to the Plaintiff by cheque and for a period through Messrs. King and Partridge, a firm of solicitors at Ootacamund. It has not been made out that the property had been sold at any undervalue to excite the suspicion of the Court. In fact, at the Court auction the first Defendant had purchased it for Rs. 12,005, and the suggestion that was made to P.W. 6, the Plaintiff's father, in cross -examination was that the sale was with an agreement for a reconveyance. This of course, has been denied. It may also be noted that in these proceedings the sale has not been attacked as one in fraud of creditors coming under Sec. 53 of the Transfer of Property Act. The contest between the parties, and the only question for consideration, is -whether the conveyance in favour of the Plaintiff is void under Sec. 64 of the Code of Civil Procedure.