MURUGAPPA CHETTIAR Vs. THIRUMALAI NADAR AND ORS.

JUDGEMENT

(1.) THIS case came up to this Court once before in S.A. No. 1740 of 1943. The only question is whether attachment was actually effected in accordance with law of the properties in suit purchased by the father of defendants 1 and 2 from the third defendant on 26th October, 1928. There was an order for attachment before judgment obtained by the plaintiff in a suit, O.S. No. 524 of 1927, in the District Munsiff's Court of Tenkasi. The plaintiff eventually obtained a decree in the suit on nth February, 1928, and purchased the properties in execution and a sale certificate was issued to him on 17th March, 1533. If the attachment had been validly made then undoubtedly the title acquired by the father of defendants 1 and 2 would not prevail against the title obtained by the plaintiff at the Court sale. It is clear from Ex. G, that there was an order for attachment before judgment made by the Court in I.A. No. 1419 of 1927 in O.S. No. 524 of 1927. The question is whether in pursuance of this order, an attachment was effected in respect of the -suit properties. The properties covered by the order of attachment were several. Some of them were iyan lands paying revenue to the Government while others were lands in a mitta village, in which there was also a house. The properties in suit are the lands in the mitta village. At the original trial except Ex. G no other documentary evidence was adduced to prove the attachment. This was alleged to be due to the fact that when the plaintiff made an application for copies of the relevant documents, the application was returned with the endorsement "destroyed". The District Munsiff held that it had not been proved that the suit properties were attached before judgment and therefore the sale in favour of the father of defendants 1 and 2 was perfectly valid. This finding of the learned District Munsiff was confirmed on appeal by the learned Subordinate Judge. In the lower appellate Court there were applications made for admission of certain additional documents which were rejected. There was then a second appeal by the plaintiff, S. A. No. 1740 of 1943. The learned Judge, Somayya, J. held that the documents sought to be admitted in evidence ought not to have been rejected. He set aside the decree of the lower appellate Court and remanded the appeal for fresh disposal after the admission of the new documents. He also gave both parties liberty to adduce evidence, if need be, in regard to these documents. In pursuance of this order, three new documents were admitted as Exs. AA, BB and CC and P.Ws. 7 and 8 were examined on behalf of the plaintiff while D.W. 6 was examined for the defendants. After a consideration of the entire evidence including the evidence newly adduced, the learned Subordinate Judge found that there had been no attachment of the properties in suit and dismissed the appeal. The plaintiff has again come up in second appeal to this Court.

(2.) MR . T.V. Muthukrishna Aiyar, learned advocate for the plaintiff -appellant, contended that the finding of the lower appellate Court that there had been no attachment, though essentially a finding of fact, ought not to be accepted because it was vitiated by the omission to apply certain presumptions which should have been made in the circumstances of the case. Before dealing with this contention it is necessary to ascertain what facts are to be established before it can be held that a valid attachment in accordance with law had been made in respect of immovable property. The material provision is Order XXI, Rule 54, of the Code of Civil Pr6cedure, which runs as follows:

(3.) BEFORE dealing with some of the decisions relied on by Mr. Muthukrishna Aiyar for drawing the presumption aforesaid, it appears to be important to bear in mind, the distinction between two things. It is true that illustration (e) to Section 114 of the Evidence Act declares that judicial and official acts may be presumed to have been regularly performed. But it does not say that it may be presumed that any particular judicial or official act has been performed. No doubt when the only evidence is that a particular judicial or official act has been performed and there is no other evidence on record, it may be presumed that that particular judicial or official act was regularly performed. But when the dispute is whether a particular judicial or official act. was performed or not, I think, there is nothing in law which enables a Court to presume that that act was as a matter of fact performed. The question here is whether there was any affixture at all of the order of attachment on the property. If there were any reliable evidence as to that fact, I quite agree that it may be presumed, in the absence of evidence to the contrary, that the affixture was properly made. But I do not think that it is permissible to decide the question in dispute entirely on a presumption. There is nothing in any of the decisions cited by Mr. Muthukrishna Aiyar to lead me to a contrary view.