MUHAMMAD ABDUL GAFOOR KHAN Vs. SYED AKRAM HASAN

JUDGEMENT

(1.) The question in this appeal is whether a private sale in favour of the plaintiffs should prevail against an auction-sale made under execution proceedings in which the property was attached prior to the sale to the plaintiffs. The Trial Court held that the sale to the plaintiffs was invalid. The lower Appellate Court has held that it was valid on the ground that it is not proved that the prior attachment was carried out in accordance with the law. The defendant has filed this second appeal to this Court. The sale to the plaintiff took place on 20 June 1916. Sometime previous to this, one Musammat Parbati Kuar had obtained a decree against the owner of the property, and, on 25 April 1916, she obtained an attachment of the property by means of prohibitory order under Order XXI, Rule 54, of the Civil Procedure Code. In continuation of that attachment the property was brought to sale and a six annas share was actually sold to the defendants on 22 August, 1916, about two months after the sale to the plaintiffs. It is this six annas share which is now in suit.

(2.) It was found by the Trial Court on inspection of the record, and the finding is not dissented from by the lower Appellate Court, that the prohibitory order was duly served on all the judgment-debtors. The lower Appellate Court based its judgment on the fact that it is not proved that service was affected in the other modes described in Order XXI, Rule 54 (2). It is, however, found that as the suit was brought considerably more than three years after the attachment took place, that portion of the record which contains the sale proclamation and the prohibitory order, and which would have enabled the Court to determine definitely whether the prohibitory order was affixed in the prescribed manner, has been weeded out and is not available. The question is whether under these circumstances the Court should throw on the defendant the burden of proving facts which the destruction of record renders it difficult, if not impossible, to prove. The Court below relies on three rulings, namely, Nur Ahmad V/s. Altaf Ali 2 A. 58 : 1 Ind. Dec. (N.S.) 583, Ganga Din V/s. Khushali 7 A. 702 : A.W.N. (1885) 179 : 4 Ind Dec. (N.S.) 676 and Satya Charan Mukherjee V/s. Madhub Chunder Karmakar 9 C.W.N. 693.

(3.) All these were rulings either under act VIII of 1895 or under Act XIV of 1882 the language of the corresponding section of these Acts was not identical with that of O XXI, Rule 54. In all three cases the suit was brought Within three years of the attachment while the record was still in existence In all three cases it was definitely proved that the requirements of the law as to publication had not been carried out. The judgment in Nur Ahmad V/s. Altaf Ali 2 A. 58 : 1 Ind. Dec. (N.S.) 583, which is very brief, says, indeed, "it is not proved that a copy of the Court order was posted in a conspicuous part of the Court house", but a reference to the summary of the facts on the preceding page shows that the matter was not left in doubt, but that the proclamation was not so posted.