SITA NATH PATI Vs. SARADA PRASANNA DAS

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of the plaintiff's title by auction-purchase to the lands described in the plaint consisting of a tank and a bamboo garden and for recovery of khas possession thereof and for mesne profits from the defendants. The plaintiff brought a suit in 1929 upon a hand-note against one Khirode Nath Kuila and caused the lands in suit to be attached before judgment in the suit. The suit was decreed on compromise, but as the decretal amount was not paid the decree was executed and the lands were put up to sale and purchased by the plaintiff on 30 April 1932. Delivery of possession was taken on 28th November 1932. The plaintiff alleges that the defendants dispossessed him on 13 February 1933. The defendants case is that one Ram Krishna Samanta got a decree on a hand-note against Kshirode Nath Kuila and purchased the lands having attached the same before judgment on 5 November 1927. The decree was passed in his favour on 30 November 1927 and in order to pay off the decretal amount the judgment-debtor Kshirode sold the lands on 16 March 1930 to the defendants and paid off the decretal amount in that suit. The decree obtained by the plaintiff was passed on 28 May 1930 and the properties were auction-purchased by him on 30 April 1932 as already mentioned.

(2.) The only point raised in this appeal is as to whether the attachment before judgment made by the plaintiff on 4 July 1929 was a valid attachment. If that is a valid attachment then it invalidates the subsequent purchase by the defendants on 16 March 1930. But unless there was a valid attachment, the purchase by the defendants which had preceded the purchase by the plaintiff, must be given effect to. The finding of the Court below is that an order of attachment in form No. 5 of appendix F under Order 38, Rule 5, was published by beat of drum and a copy of it was fixed on the properties. But there was no publication of attachment in the form laid down under Order 21, Rule 54, namely, in form No. 24 of appendix B. Attachment under Order 38, Rule 5, is to be made in accordance with the manner provided for attachment of properties, in execution of a decree, and the manner for attachment of property in execution of a decree is laid down in Order 21, Rule 54. The Courts below having held that no notice in form No. 24 of appendix E, was published and fixed on the properties there was no valid proclamation or attachment. Since Order 21, Rule 54, lays down that the attachment is to 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. It further lays down that the order is to be proclaimed in some place adjacent to the property by beat of drum and a copy of the order is to be fixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house.

(3.) Inasmuch as the conditional attachment under Order 38, Rule 5, was made and inasmuch as the order sheet shows that there was an attachment before judgment, it is contended that under the provisions of Section 114, Evidence Act, it must be presumed that the necessary formalities for attachment before judgment had been actually carried out; and therefore it must be presumed that the publication of the order prohibiting the transfer of the property as laid down in Order 21, Rule 54, had actually been made and a copy affixed to the properties. In Bharat Chandra V/s. Gouranga Chandra however it, is laid down that proclamation by beat of drum and affixing on the property a copy of the order in form No. 5, Appendix F, does not constitute an attachment under the Civil P. C.. In view of this ruling it must be held that unless a presumption under Section 114, can be raised so as to hold that the proclamation was made and other formalities carried out in the manner prescribed in Order 21, Rule 54, it must be held that there was no valid attachment. Section 114, Evidence Act, lays down the rule as to the existence of any fact which the Court thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case; and under Illus. (e) the Court may presume that judicial and official acts have been regularly performed. The Courts in this case have held that in this case there can be no such presumption as there is no reference in the order sheet of the issue of notice under Order 21, Rule 54, and the, order sheet shows only that a notice was issued on the defendant directing him to show cause within seven days from the date of service of the notice why the properties mentioned in the petition should not be attached unless the defendant furnishes sufficient security. After this, it was ordered as follows: "Let in the mean-while these properties be conditionally attached till the hearing of the matter". The next order reads as follows: "Attachment notice of summons served. Service of notice of summons not proved". A number of subsequent orders was passed showing that the suit was finally decreed on compromise. The compromise decree shows that the properties remained under attachment; and since there is no order showing that the decretal amount was paid and attachment withdrawn, it must be held that in fact the attachment under Order 38, Rule 5, was continuing at the time of the purchase by the plaintiff. It is pointed out that the trial Court was influenced by the fact that a copy of the writ of attachment in form No. 24, Appendix E, was not produced.