KARAN SINGH Vs. RAM SAHAI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for possession of zamindary property. The plaintiff alleged that he attached the property in suit on 30 March 1930. The attachment was made before judgment in a suit which was filed on 29th March 1930. The defendant alleged that he had entered into an agreement with the owner of the property Mt. Kalawati to purchase it. This agreement was concluded according to the defendant on 26 March 1930. The learned District Judge has found that there was no oral agreement on 26 March 1930 but that there was a written agreement to purchase the property of 3l March, 1930. In other words the agreement to purchase was entered into upon the day after the alleged attachment of the property. Despite the order of attachment which certainly was issued on 29 March 1930 and which was proclaimed by beat of drum and affixed upon the property in suit on 30 March 1930 the learned District Judge has dismissed the suit. He has done so upon the ground that no notice of the interim order of attachment which was passed on 29 March 1930 was served upon Mt. Kalawati. Apparently Mt. Kalawati was not at her usual place of residence upon that date and the order calling upon Mt. Kalawati to show cause why her property should not be attached was only served upon her counsel on 5th April 1930. The learned District Judge held that in the circumstances there was no valid attachment of the property in suit. In this, in our judgment, the learned District Judge has clearly misdirected himself in law. Under Order 38, Rule 7 attachments before judgments shall be made in the manner provided for the attachment of property in execution of a decree. The attachment of property in execution of a decree is governed by Order 21, Rule 54. Order 21, Rule 54 provides that: Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(2.) Sub-rule (2) of Order 21, Rule 54, is as follows: 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.

(3.) Sub-rule (3) enjoins: The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made.