TMI Blog1965 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... red by a catena of decisions of this Court and other Courts, all requiring punctilious adherence to the requirements of Order XXI, Rule 54 of the Code of Civil Procedure. As learned Counsel appearing for the contesting Respondent sought to distinguish particularly the decisions of this Court and draw a line of distinction as to mandatory and directory provisions in procedure, we shall examine the question a little more in extenso-than will be strictly necessary. 2. We shall first discuss the material facts and findings on which there is-contest and which now survive for consideration. The suit property is a bungalow known as Lansdowne, bearing door No. 284 with outhouses bearing; door No. 285 with sub-divisions therein, in Ward No. 12 within the municipal limits of Ootacamund, situated in R.S. No. 3688, of an extent of 4 acres and. 15 cents. The second Defendant in the suit, out of which this appeal arises, was the admitted owner of the property, and the Plaintiff, the Appellant herein, claims the property under a conveyance in her favour, dated 19th. October 1956, evidenced by the registered sale deed, exhibit A-10 for a consideration of PvS. 15,000. The first Defendant in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and for a period through Messrs. King and Partridge, a firm of solicitors at Ootacamund. It has not been made out that the property had been sold at any undervalue to excite the suspicion of the Court. In fact, at the Court auction the first Defendant had purchased it for Rs. 12,005, and the suggestion that was made to P.W. 6, the Plaintiff's father, in cross-examination was that the sale was with an agreement for a reconveyance. This of course, has been denied. It may also be noted that in these proceedings the sale has not been attacked as one in fraud of creditors coming under Section 53 of the Transfer of Property Act. The contest between the parties, and the only question for consideration, is -whether the conveyance in favour of the Plaintiff is void under Section 64 of the Code of Civil Procedure. 4. The learned Subordinate Judge has not made any distinction as to the proceedings relating to the attachment and the proceedings relating to the actual sale. The Plaintiff, in the plaint, had questioned the very factum of attachment. It was pleaded that the properties were never, in fact, attached; no affixture was made, nor any beat of drum as required by law at or nea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Subordinate Judge was inclined to hold that there was tom-tom and affixture at the property. 6. For effecting attachment of immovable property under Order XXI, Rule 54 of the Code of Civil Procedure, as amended in Madras under Section 122 of the Code of Civil Procedure, there has to be 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. This order has to be proclaimed as provided in sub-Clause (2) of Rule 54. It must be (a) proclaimed by beat of drum or other customary mode at some place on or adjacent to such property; (b) a copy of the order must be affixed on a conspicuous part of the property; (c) a copy shall be affixed on a conspicuous part of the Courthouse; (d) if the property is land, paying revenue to the Government, a copy of the order has to be affixed in the office of the Collector of the district where the land is situated; and (e) where the property is situated within the limits of a municipality, a copy of the order should be affixed in the office of the municipality also. Now, in this case, the Plaintiff has denied the proclamation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at home, his wife or any member of his family would inform him. In his cross-examination P.W. 2 was asked whether A.M. Yussuf, Rasheed and Nanjundiah did not reside at Finger Post, the locality where the suit property is situated. To a question in cross-examination with reference to these people, he has stated, if they have attested to any tom-tom made there, I cannot say why they have attested to such a report. It has been elicited in his re-examination that these persons reside about a furlong from the bungalow. The importance of this piece of evidence lies in this, that in the amin's report, exhibit B-l, these persons figure as attestors, but not one of them has been examined. Absolutely no explanation is given for their non-examination. The amin, who was entrusted with the warrant for effecting the attachment, has given evidence as D.W. 1. He states that the attestors to his effecting the attachment are of the locality and all of them reside at Finger Post. He says that one or two of them were residing in the property attached and were Muslims, but cannot point them out in exhibit B-l, the return of the warrant. According to him, he effected the attachment in Ward No. 7. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence relating to the tom-tom and affixture of notice by the learned Subordinate Judge and no proper appraisal of the evidence in the light of probabilities and the facts as emerge from the evidence of the witnesses. When the question is whether there has been tom-tom and affixture, and evidence has been adduced, there is no question of relying upon any presumption under Section 114 of the Evidence Act. Presumption is only as to the regularity of an official act which is proved to have been performed. The presumption does not come in when there is no evidence that the act has been performed, or the evidence that is let in does not warrant an inference of performance. As observed in Murugappa Chettiar v. Thirumalai Nadar (1947) 2 M.L.J 310, 313 by Rajamannar J., as he then was: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property; (ii) affixture of the order on a conspicuous part of the property; and (iii) affixture of the order in the office of the municipality. 8. Now, the question is whether these defects are fatal to the attachment as to rule out the applicability of Section 64 of the Code of Civil Procedure to the transfer in question. While proceedings in execution of a money decree are pending, no right to immovable property is directly or specifically in question. It is only when an attachment is effected, it operates as a valid prohibition against alienation of the attached property making void the alienation against claims enforceable under the attachment. Section 64 of the Code of Civil Procedure runs thus-- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Explanation.--For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets. 9. For the interdiction against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 64 of the Code of Civil Procedure. Article 11 prescribed a period of one year from the date of the order in a suit by a person against whom an order under the Code of Civil Procedure has been made on a claim preferred to or an objection made to the attachment of property attached in execution. The question for consideration naturally was when was the property attached in execution. Lord Shaw, who delivered the judgment of the Board, after referring to the fasciculus of clauses beginning with Rule 41 of Order XXI of the Code of Civil Procedure, prescribing various modes of attachment according to the kind of the property to be attached, observed-- These instances go to show that under the Code of Civil Procedure in India the most anxious provisions are enacted in order to prevent the mere order of a Court from effecting attachment and plainly indicating that the attachment itself is something separate from the mere order and is something which is to be done and effected before attachment can be declared to have' been accomplished. That which has to be done for accomplishing attachment of immovable property is clearly prescribed under Order XXI, Rule 54, and LORD SHAW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasers to their prejudice. The essence of an order of attachment is to prohibit the judgment-debtor from transferring the property and until such a prohibition is proclaimed and made known in the way provided by the rule it cannot be said to have come into operation. 14. The object being to ward off innocent purchasers by adequate publication, the Code has provided for the dissemination of the purport of the order to the widest extent possible. It has to be proclaimed at or about the property by affixture and beat of drum. If the property is within the municipal limits affixture on the municipal notice board is evidently expected to bring the order of attachment to the notice of a number of persons. Councillors will be frequenting the place. Citizens or clerks or servants will be frequenting The municipal office for purposes of payment of taxes, securing licences approval of plans for building, etc. When Council meetings are held, the public also often gather there. In a village beat of drum ordinarily attracts considerable attention; but in a municipal area it may pass unnoticed even in the neighbourhood. That may be one of the reasons why in the Madras amendment, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the procedure laid down by the Code. 18. It was held in that case that by reason of the absence of affixture on the lands there was no valid attachment of the suit properties. A number of cases have been referred to by learned Counsel for the Plaintiff, where for failure to affix in one or other manner as provided in the Code, attachments have been held to be invalid. As we have no doubt about the position, we shall refer to a few of them only. In Nawab Ahamed Yar Khan v. S.K. Bose A.I.R. 1925 Lah. 583 a decision of a division Bench of the Lahore High Court, the order was promulgated at the property and a copy of the order affixed in the court-house, but there was no affixture in the office of the Collector of the district. This defect was held to vitiate the attachment and not attract the provisions of Section 64 of the Code of Civil Procedure. It is observed that where the law laid down a definite procedure for the conduct of an act, which was purely symbolical, the procedure must be strictly followed and any omission therein must be regarded as material. 19. In Lala Hira Lal v. Murshi Jagatpati Sahai I.L.R. (1928) Pat. 1 already referred to above, there was ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. decree holder) has not yet grasped the property as against the purchaser who, for value and in good faith, buys before he completes his hold of it. This seems to me to be a perfectly logical result, since it would surely be inequitable that an honest purchaser should suffer from having notice of the possibility of that which has not yet, and may never, actually, occur. 21. In Lachhmandas v. Rupchand A.I.R. 1935 Lah. 37 it was found that the order had been, proclaimed by beat of drum in the village and a copy of the order had been affixed in the village chavadi. There was no affixture of the copy on a conspicuous part of the property, and it was held that the formalities prescribed by Order XXI, Rule 54 had not been fully complied with, and that, therefore, the aid of Section 64 of the Code of Civil Procedure could not be invoked. 22. In Bank of Chettinad v. Mating Hla Gyi A.I.R. 1933 Rang. 267, in execution of a money decree, attachment of 400 baskets of paddy lying on the threshing floor was applied for and ordered. There were three heaps of paddy sheaves; the decree-holder attached one heap of paddy sheaves; he, however, failed to affix a copy of the warrant of attachme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the issue of the prohibitory order and that therefore, there was no scope for consideration of the present point raised by him. Learned Counsel would distinguish the decision in Murugappa Chettiar v. Thirumalai Nadar (1947) 2 M.L.J. 310 also as a case where, with reference to the particular properties in question, there was no attempt at carrying out the steps as provided for under Order XXI, Rule 54(2). Reliance is placed by learned Counsel on Dhiansingh v. Secretary of State for India in Council I.L.R. (1945) Nag. 121 and the decision of the Orissa High Court in Ratha Harijan v. Narasingha Rana A.I.R. 1961 Orri 22. In our view in Dhiansingh v. Secretary of State for India in Council I.L.R. (1945) Nag. 121 the question in this form with reference to Order XXI, Rule 54 did not arise for consideration. There is no reference even to Muthiah Chetti v. Palaniappa Chetti I.L.R. (1928) Mad. 349 (P.C.) and Sinnappan v. Arunachalam Pillai I.L.R. (1919) Mad. 844 (F.B.). In Dhiansingh v. Secretary of State for India in Council I.L.R. (1945) Nag. 121 an attachment before judgment of a book debt was sought. The attachment itself appears to have been properly effected and no question was ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mode of attachment, it was observed that even if there were omissions in the matter of observing the formalities in making the attachment, the attachment was not invalid; and for this, reliance is placed on the decision in Dhiansingh v. Secretary of State for India in Council I.L.R. (1945) Nag. 121. In this case, actually on the merits, there was a finding based on oral and documentary evidence that the attachment was made on the spot that a copy of the writ of attachment was affixed on a conspicuous part of the property and that proclamation was made by beat of drums. Regarding the other requirements under Order XXI, Rule 54 of the Code of Civil Procedure, there was no positive evidence that they were not followed and the Court held that the question of the attachment being invalid on account of the non-compliance with certain procedure laid down by Order XXI, Rule 54 of the Code of Civil Procedure did not arise. In the circumstances, in our view, the observations in Tatha Harijan v. Narasingha Rana AIR 1961 Orissa 22 , that even if there were omissions in the matter of observing the formalities in mating the attachment, the attachment was not invalid, are obiter and not of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully considering the whole scope of the provision, the object intended and its effect on the rights of parties. In The Collector of Monghyr v. Keshav Prasad Goenka (1963) S.C.R. 98, 113, Rajagopala Ayyanger J., delivering the judgment of the Court, observes: It is needless to add that the employment of the auxiliary verb shall is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance sets out the consequence of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general schema thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve. In State of Uttar Pradesh and Ors. v. Babu Ram Upadhya (1961) 2 S.C.R. 679, 710, Subba Rao J., sets out the principle thus: When a statute uses the word shall prima facie, it is mandatory, but the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in concluding that the requirements of Order XXI, Rule 54(1) and (2) are mandatory and every one of the prescribed things must be done before an attachment could be said to have been made for Section 64, Code of Civil Procedure to come into operation. 27. We fail to see on what principle a distinction could, be made between one requirements and another to hold that compliance with some only of the requirements of Order XXI, Rule 54(2) would be substantial compliance with the provisions of the rule and could be held to perfect the attachment. The Legislature has made no distinction between the several requirements and the language, as already noticed, with reference to every one of the requirements, is imperative. The argumentum ab inconvenient does not appeal to us. Procedural rules are enacted to be observed, and we fail to see why we should condone laches. If breaches are permitted and Courts have to go into the question as to what effect it had on the publication, actual or constructive, then room is given for difference of outlook and opinion and endless proceedings in execution which are already generally protracted. 28. We have to sound a note of caution that the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kika Jivan I.L.R. (1929) 53 Bom. 851, Pokh Pal Singh v. Kanhaiya Lal I.L.R. (1946) All. 788 and Bank of Chettinad v. Maung Hla Gyi A.I.R. 1933 Rang. 267. But knowledge of execution proceedings may affect the private purchaser under other principles of law. The transaction may get suspect and liable to be impeached under Section 53 of the Transfer of Property Act. But even if knowledge of the purchaser can have any relevancy, in this case there is no evidence to warrant an inference that the Plaintiff had notice of all the proceedings for attachment of the property in question. No doubt the learned Subordinate Judge in one part of his judgment holds that the Plaintiff must have been aware of the decree and execution proceedings. All the same at the end while granting a decree against the second Defendant, the learned Subordinate judge would observe that it was not possible to agree that the Plaintiff had purchased the property in spite of the decree in Original Suit No. 10 of 1956 and execution proceedings connected therewith against the suit property. The learned Subordinate Judge comments that the second Defendant had not chosen to examine himself to maintain his version that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading to the sale in favour of the decree-holder. An execution sale can pass only the right, title and interest of the judgment-debtor. The decision in Venkatachalapathi Rao v. Venkatappayya (1931) I.L.R. 55 Mad. 495, 503 relied upon by learned Counsel for the Respondent can have no application in the instant case. In that case subsequent to an interim order of stay of execution granted in an appeal without notice to the decree-holder but before the communication to the Court of first instance, an order of attachment was made. Further proceedings by way of actual attachment took place and, as noticed in page 502 of the report, the proceedings by way of attachment of the properties in dispute took place in a Court of competent jurisdiction. The interim stay order was later vacated and pending proceedings by the judgment-debtor questioning the validity of the attachment, third parties purchased the properties from the judgment-debtor. While the District Munsif and the Subordinate Judge on appeal therefrom concurred in quashing the attachment proceedings this Court in Venkatachalapathi Rao v. Kameswaramma (1919) I.L.R. Mad. 151 (F.B.) upheld the validity of the attachment. 32. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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