Madras High Court
Chinnasamy vs Subakmul Gulecha And D. Heerachand ... on 26 July, 2002
Equivalent citations: AIR2003MAD46, (2002)3MLJ229, AIR 2003 MADRAS 46, (2002) 3 MAD LJ 229
Author: Prabha Sridevan
Bench: Prabha Sridevan
JUDGMENT Prabha Sridevan, J.
1. The plaintiff is the appellant herein who lost in both the Courts below. The plaintiff seeks declaration and permanent injunction in respect of the suit property.
2. The facts of the case are as follows:
The suit property belonged to one Sudarsanam Reddiar. He mortgaged the property to one Muthulakshmi Ammal. The plaintiff claimed that he redeemed it and purchased the property after discharging the mortgage on 09.02.1978. While so, when the first respondent interfered with his possession, he made enquiries. He learnt that in a Court auction sale conducted in the execution proceedings in O.S.No.1704 of 1973 filed by the second respondent against the aforesaid Sudarsanam Reddiar, the first respondent purchased the property.
3. According to the plaintiff, he is a bona fide purchaser for value without notice and in any event the Court auction sale conducted is not in accordance with Order 21 Rule 54 C.P.C. and therefore it cannot be held to be a valid attachment or sale. The plaintiff had made enquires regarding any subsisting encumbrance and only thereafter had purchased the property and therefore he was entitled to the relief claimed.
4. The respondents in defence stated that in E.P.No.783 of 1974 to execute a decree in O.S.No.1704/1973, the suit properties were attached on 10.07.1974. The attachment was effected by tom-tom and other formalities. Later, the E.P. was closed on account of the Debt Relief Act coming into force but the attachment continued. After the moratorium period came to an end, the properties were brought to sale and on 09.06.1982, the second respondent purchased the property. In the meantime, the judgment debtor Sudarsanam Reddiar filed an application under Order 21 Rule 90 C.P.C. which was dismissed. The second respondent took delivery of the properties through Court on 08.08.1984. Sudarsanam Reddiar, who lost in his attempt to prevent the respondents from obtaining the fruits of the decree has now set up the appellant to file the suit. The trial Court dismissed the suit and appellate Court dismissed the appeal. Therefore, the present second appeal has been filed.
5. Learned counsel for the appellant submitted that the attachment has not been effected properly and therefore the sale itself must be set aside, in which case he would be entitled to the suit property as well as for injunction. He would also submit that the appellant had discharged the mortgage in favour of Muthulakshmi Ammal and had purchased the property for valuable consideration and cannot now be denied the suit property by a court auction sale which was not conducted in accordance with law. According to the learned counsel, the formalities laid down in Order 21 Rule 54 CPC were mandatory and failure to follow them would render the attachment null and void.
6. Reliance was placed on Sri Krishna Chit Funds (Sattur Pvt. Ltd.) vs. R.S. Pillai , where it was held that if the mandatory provisions regarding the manner in which attachment should be effected have not been followed, the order of attachment cannot be sustained; and when the bona fide purchaser had also discharged all the disclosed debts and had no knowledge of the order of attachment, the decree holder cannot proceed against that property.
7. Vijaya College Trust vs. Kumta Co-op. Arecanut Sales Society Ltd. was relied on to show that a party relying on attachment has to prove that attachment was effected in compliance with provisions of law.
8. Mansoor Ali Vs. Azizul Rahman was also relied on to show that unless service of notice of attachment on defendant is effected in prescribed form, the order of attachment is not valid.
9. Learned counsel for the respondents on the other hand would submit that Section 64 CPC would render the transfer in favour of the appellant invalid. It was also submitted that the appellant had not established that he had discharged the mortgage and further that Section 64 CPC does not distinguish between the bona fide purchaser for value and another.
10. Learned counsel relied on M/s. Nalli Textiles, Madras vs. Minor Krishnan (2001 (3) MLJ 512) where it was held that when the property is purchased from the judgment debtor with full knowledge of the attachment, then the sale is hit by provisions of Section 64 CPC. Some of the dates that are relevant are as follows:
11. Ex. B1 shows that 10.07.1974 is the date on which attachment was effected. The sale deed in favour of the appellant is dated 09.02.1978, Ex. A1.
12. To prove the attachment, the respondents had examined his clerk, D.W.1, who alone was present when the attachment was effected. D.W.1 in his chief examination has stated that the attachment was effected by the Amin through Court and by tom-tom, planting sticks and of the attestation of the local people. Ex.B1 which is the order of attachment was marked through him. Ex. B1 reads as follows:
"WHEREAS you have failed to satisfy a decree passed against you on the 11th day of December, 1973, in Suit No.O.S.1704 of 1973 in favour of the plaintiff for Rs.---; it is ordered that you, the said defendant be and you are hereby prohibited and restrained, until the further order of this Court, from transferring or charging the property specified in the schedule - worn out - annexed, by sale, gift or otherwise, and that all persons be and that they are hereby, prohibited from reviewing the same by purchase, gift or otherwise."
13. The evidence is that on 10.07.1974, in Kondamur Village, the Court Amin had gone in the presence of the witnesses and attached the suit items 1 to 32. He read out the order of attachment to everybody, effected tom-tom, made publication, planted sticks in each of the suit properties and tied the order of attachment to each of those sticks.
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14. The person who effected the tom-tom has also signed the same that he received Re.1/- as batta for effecting tom-tom. The appellant has not elicited anything in the evidence either oral or documentary to prove that what is stated in Ex.B1 is not correct or that none of those steps stated to have been effected in that exhibit were actually not done. In fact, the plaintiff as P.W.1 had stated in his evidence that he asked Vinayagam, Arumugam, Maniyakarar and Thotti whether attachment in tom-tom was effected but he did not choose to examine any one of them.
15. He examined P.W.2,one Muthusamy who is not one of the persons above named. As for ascertaining whether there were any Court proceedings in respect of the suit property, he had stated that he asked a vakil clerk called Balu, giving him the survey number and he was informed that there was no attachment. This Balu also has not been examined. Therefore, in the absence of any strong evidence to the contrary, the material facts on record would show that the attachment was effected in accordance with law.
16. It is also seen that Sudarsanam Reddiar filed a petition under Order 21 Rule 90 CPC and allowed it to be dismissed for default. As regards the appellant being a bona fide purchaser for value who had discharged the debts, this is also in doubt. When the question of discharge of the mortgage to Muthulakshmi Ammal was raised, the learned counsel for the appellant, pointed out Ex. A1, and would submit that the very fact that the appellant had the original mortgage deed in his custody would show that the mortgage has been discharged and that it is not necessary that there should be lines scoring off the mortgage deed to show discharge. But when there is no documentary proof to show the discharge of the mortgage, it is not possible to accept that custody of Ex. A1 alone will show discharge of mortgage. This is because the appellant is none other than the father of the mortgagee Muthulakshmi Ammal. It is seen from Ex. A1 that the residence of the mortgagee and the residence of the appellant are one and the same. So, production of the mortgage deed alone cannot prove that he has discharged the mortgage. This is with regard to the facts of the case.
17. Order 21 Rule 54 (Madras amendment) requires that the order of attachment shall be proclaimed at some place or adjacent to the suit property by beat of drum or other customary mode and affixer of the order on part of the property and on a conspicuous part of the Court house and also affixture in the office of the Revenue Divisional Office of the area.
18. Section 64 CPC renders all private transfers of property after attachment is void. This section reads as follows:
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 purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.
19. In Sinnappan @ Hetharamamana Rowther Vs. Arunachalam Pillai and Others (Volume XXXVII MLJ 375), a Full Bench of this Court held that an attachment operates as a valid prohibition against alienation of the attached property only from the date on which the necessary proclamation is made under Order 21 Rule 54 (2) CPC. In this case, the proclamation was made on 10.07.1974. It was observed by the learned Judges therein that the object of Section 64 CPC is to prohibit alienation of the attached property and if the mere passing of an order in Court would have that effect, one can easily imagine that the judgment debtor would be in a position to make alienations to innocent purchasers to their prejudice. 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 the way provided by the rule, it cannot be said to have come into operation. In this case, the publicity given to the order of attachment is clear from Ex. B1.
20. In Mohammad Akbar Khan Vs. Mian Musharaf Shah (A.I.R.1934 PC 217), it was held that where there is ample evidence of an attachment in the absence of direct evidence to the contrary, it must be presumed that all formalities are duly complied with. In this case, the appellant could have got the aid of those persons whom he had mentioned in his evidence that tom-tom was not effected. There is no direct evidence to show non-compliance of the mandatory formalities. So, it must be presumed that what is stated in Ex. B1 was actually done and the evidence of D.W.1 is also to that effect.
21. In Ramesan Vs. Kunhipalu , the Full Bench of Kerala High Court has held that the presumption under Section 114 of Evidence Act regarding regularity of performance of judicial and official acts can be drawn if attachment is actually proved by Amin's report or otherwise.
22. In A.T.K.P.L.M. Muthiah Chetti Vs. Palaniappa Chetti (AIR 1928 PC 139), the Privy Council held that the property could not be declared as attached unless the formalities were complied with. But in that case, there was no evidence of attachment. In Murugappa Chettiar Vs. Thirumalai Nadar (AIR 1948 Madras 191) and in Padmavathi Ammal Vs. Maruthachalam Pillai (1966 (I) MLJ 413), the parties let in evidence to show that there was no proper attachment and therefore it was held that the presumption under Section 114 of the Evidence Act does not arise. But these decisions will not apply to the present case where there is documentary evidence to show that all the formalities of Order 21 Rule 54 CPC were complied with and there is no direct evidence to the contrary.
23. In S.G.Films Exchange Vs. Brijnath Singhji , it was held that Section 64 CPC in fact constitutes an application of the doctrine of lis pendens in the factual circumstances of that case and held that the case was hit by the provisions of Section 64.
24. In this case, documents have been produced not only to show that the order of attachment was passed but also that it was effected in the presence of the villagers and with the aid of the Court Amin. So, the decisions relied on behalf of the appellant will not apply to this case.
25. In (cited supra), the learned Judge had dealt in detail with the various decisions of this Court relating to the manner in which an attachment comes into effect and in that case it was found on facts that Rule 11 b which makes it mandatory for the order of attachment to be communicated to the Registering Officer was not complied with and in those circumstances, it was held that there was no proper attachment and therefore the learned Judge held that the sale was not hit by Section 64. But, that again will not apply here.
26. In 2001 (3) MLJ 512 (cited supra), the effect of attachment was mentioned in the sale deed itself and in those circumstances, the learned Judge held that the sale was hit by provisions of Section 64 CPC. In the absence of PRABHA SRIDEVAN, J.
mmi any evidence to show that the attachment was not effected in accordance with law and since Section 64, does not make any distinction between the bona fide transferee and the transferee without consideration, the sale in favour of the appellant will stand hit by Section 64 CPC. The plea that he had discharged the mortgage debts in favour of Muthulakshmi Ammal has also not been proved. In fact, in his evidence, he admits that he has not given the money to his daughter.
27. Therefore, the appellant has to fail and the second appeal is dismissed. No costs.