TMI Blog1947 (4) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee in Muthia Chettiar v. Palaniappa Chettiar as follows after referring to Order XXI, Rule 54 of the Code of Civil Procedure, In view of these provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could, dispense with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order, the other things prescribed by the rules in the Code have been done. It is thus clear that an attachment cannot be said to have been made unless and until the provisions of both the sub-rules have been complied with, that is to say, there must be (1) an order prohibiting the judgment debtor from transferring or charging the property in any way; and (2) that order must be proclaimed by beat of torn torn near the property and copies of the prohibitory orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iles from the mitta office. From this evidence it certainly cannot be said that the requirements of Sub-rule (2) of Order 21, Rule 54 of the Code of Civil Procedure have been fulfilled. There is no evidence whatever, oral or documentary, that a copy of the order was affixed on a conspicuous part of the suit properties. There appears to be some evidence that such an affixture was made on the house. But this in itself is not sufficient. When several properties are sought to be attached in pursuance of an order of attachment, there must be proof of affixture on every one of the properties. It was laid down in Rukminiamma v. Ramayya AIR 1943 Mad 712, that where there are several lots of property, an order of attachment affixed only to one such lot cannot be deemed to be effective attachment of other lots of properties. In that case the decree-holder attached a house and 16 parcels of jeryoti lands in the town of Ellore. There was a proclamation at the house and the affixture of the order of attachment on the building. The order was not posted upon any of the lands. The learned Judges held that the mere proclamation of the attachment and the affixing of the order on the house was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. I may also say that it is not obligatory on the part of the Court to draw a presumption always. The language of Section 114 of the Evidence Act itself indicates that the presumption must be drawn in relation to the facts of the particular case. A Court may refuse to draw the presumption to assist a party like the plaintiff in the present case who comes to Court long after the material evidence necessary to establish his case had ceased to be available and then seeks to rest his case entirely on presumptions. It will be unfair to the other party who would be unabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision therefore cannot help the appellant. 8. The evidence in this case to my mind clearly shows that there was no affixture on the lands. The plaintiff speaks only to an affixture in the mitta office. The amin speaks to an affixture on the house. There is therefore evidence of persons who had knowledge of the attachment proceedings and that evidence so far as it goes is clearly contrary to the facts alleged by the plaintiff. This is not a case in which a presumption could be drawn in the plaintiff's favour. 9. As already mentioned it was on account of the plaintiff's delay that the best evidence is not available to the Court. He purchased the property in 1933 and it has now been found that ever since this purchase he has not been able to secure possession. Nevertheless, he filed the suit only in 1940, nearly seven years after his purchase, by which time the relevant record has ceased to be available. 10. As pointed out by the Full Bench in Sinnappan v. Arunachalam Pillai (1919) 37 MLJ 375, the essence of an order for attachment is to prohibit the judgment-debtor from transferring the property and until such a prohibition is proclaimed and made known in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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