RANGASWAMY PERUMAL Vs. VIJAYALAKSHMI FINANCIAL TRADING COMPANY

JUDGEMENT

(1.) THIS is an appeal filed by the plaintiff in O.S.No.49 of 1978 on the file of the Court of the Second Additional Subordinate Judge of Pondi-cherry, against the judgment of the trial Court dated 7th September, 1979, dismissing the suit.

(2.) THE case of the plaintiff-appellant in the lower Court was as follows:-THE second defendant sold the suit house to him for Rs.45,000/ under a sale deed dated 11.8.1976. At the time of execution of the sale deed, the second defendant produced an encumbrance certificate which showed that a sum of Rs.20,000/ had been borrowed by the second defendant from one Kanagalingam on 4.9.1973. THE encumbrance certificate did not disclose any other encumbrance. THE plaintiff took possession of the house. While so, on 8.2.1978, the plaintiff found a sale notice affixed on the suit property, which proclaimed for sale the suit property in E.P.No.314 of 1977 on the file of the Sub-Court, Pondicherry. THE above sale notice disclosed the second defendant as the judgment-debtor in the said execution petition which had been filed in execution of a decree obtained by the first defendant against the second defendant in O.S.No.91 of 1973 on the file of the Sub-Court, Pondicherry, for a sum of Rs.10,407/. THE sale notice also disclosed that the suit property had been attached before judgment by the first defendant in I.A.No.541 of 1973 in the said suit. At the time of the sale the second defendant did not disclose to the plaintiff any such attachment by the court and the plaintiff too had no reasonable possibility to have knowledge of the said attachment. THE above attachment effected in the suit was made absolute since the second defendant submitted to a decree in that suit. THE very contents of the order of attachment as disclosed in the sale notice, shows that the court, in the earlier suit by the first defendant, had not applied its mind in passing, the order of attachment and making it absolute. THE above order is not conditional in nature as prescribed by Order 38, Rule 5, Code of Civil Procedure, and hence the order of attachment is null and void. According to the plaintiff, no attachment had been made on 2.5.1973 and the attachment was not also made as required under the Rules governing the effecting of attachments before judgment. THErefore, the order of attachment is ab initio void and not enforceable in law. It appears to have been effected in collusion between the first and second defendants in a fraudulent manner in order to deceive a third-party. THE plaintiff came to know of the said fraud committed only On 8.2.1978 and has filed the suit to set aside the said attachment in I.A.No.541 of 1973 as null and void.

(3.) EVEN at the outset, this Court is of the view that it is not either for the plaintiff or for the defendant to say anything about the application of the mind by the Court. It is for the higher forum, namely the appellate forum and the revisional forum or other higher forums of judiciary to say anything about the mind of a Court. By casually observing in the above manner both in the plaint and in the grounds of appeal regarding the order in I.A.No.541 of 1973 and that the Court passed the said order without applying its mind is something which goes to the root of the question as to whether the parties have committed contempt of Court or not in using such unholy expressions regarding the mind of the Court. When the defil itself know-eth not the mind of man, a Judge, who is a superior authority in receiving evidence, recording the same and delivering judgement in a dispute put forward before him by either side, is an institution of sanctity by himself. Before such a sanctified forum, the plaintiff should not have, in a casual or ordinary manner made expression as to the application of its mind by the Court, since the Judge is always thinking about the evidence on record with reference to the arguments of either side as well as the application of the provisions of any enactment that have to be applied with respect of the evidence so as to come to a decision on a case. Such being the holy work that is actually done by a Presiding Officer of a Court, for the sake of a mere remedy of setting aside an order of attachment, if the parties are to indulge in such scathing remarks against the Presiding Officer who passed an order in an application regarding attachment, is something against the very dignity of the forum, namely the Court of Law, however big or small it may be. This kind of attitude by a citizen, the plaintiff and the first defendant in this case, the plaintiff saying that the Court had not applied its mind and the first defendant saying that the Court did apply its mind, as if they are sitting in judgment over the application of the mind of the Court, is all beyond the comprehension of a party who has come to the Court seeking a remedy. It is further very unfortunate that such kind of allegations are made and that are being drafted by the Advocates concerned who are of the Court. In the instant case, we find that both sides have been represented by Advocates. The above observation is made to pull up persons who are callous and indifferent in their attitude towards courts.