In our opinion the material point of time about the plaintiff's knowledge of attachment is the interval between the making of the order of the attachment and the date of its due publication under Sub-rule. (2) of Rule 54. The addition has been made to Sub-rule. (1) of Rule 54, and not to Sub-rule. (2). Sub-rule (1) provides for the attachment being made by an order prohibiting the judgment-debtor from transferring the property and all persons from taking any benefit under such transfer. Sub-rule (2) lays down the method by "which the order of attachment is to be proclaimed. The new Sub-rule, therefore, does not affect the provisions of Sub-rule. (2). It appears that several other High Courts have also added a new sub-rule to the same effect in Rule 54 instead of adding it in Sub-rule (1). It says that the order of attachment shall take effect in the case where there is consideration for the transfer from the date when such order came to the knowledge of the person to whom the property was transferred or from the date when the order is proclaimed under Sub-rule (2) whichever is earlier. In our opinion, the object of adding the new sub-rule must have been to protect the transferee without notice during the interval between the date of making the order and the date of its proclamation and not thereafter, because once the order is proclaimed as provided in Sub-rule (2)," it amounts to constructive notice to all persons including the person who took the property. 1
2. On appeal to this Court, the learned advocate on behalf of the plaintiff appellant contended for the first time that under an addition made by this Court in 1926 to Sub-rule. (1) of Rule 54 of Order XXI, the order of attachment in a case where there was consideration for the transfer was to operate from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred. There being no evidence in the case as to when the plaintiff came to know of the order of attachment, the matter was remanded to the lower Court for as finding on that point. The lower Court was also asked to determine the question of burden of proof. After the remand both sides led evidence to prove their cases. The learned Judge below believed the evidence of the defendant, disbelieved the plaintiff and his witnesses, and on the circumstances also he was of the opinion that the plaintiff had knowledge of the attachment when he took the mortgage. He sent this issue back with his finding to that effect.
3. In our opinion the material point of time about the plaintiff's knowledge of attachment is the interval between the making of the order of the attachment and the date of its due publication under Sub-rule. (2) of Rule 54. The addition has been made to Sub-rule. (1) of Rule 54, and not to Sub-rule. (2). Sub-rule (1) provides for the attachment being made by an order prohibiting the judgment-debtor from transferring the property and all persons from taking any benefit under such transfer. Sub-rule (2) lays down the method by "which the order of attachment is to be proclaimed. The new Sub-rule, therefore, does not affect the provisions of Sub-rule. (2). It appears that several other High Courts have also added a new sub-rule to the same effect in Rule 54 instead of adding it in Sub-rule (1). It says that the order of attachment shall take effect in the case where there is consideration for the transfer from the date when such order came to the knowledge of the person to whom the property was transferred or from the date when the order is proclaimed under Sub-rule (2) whichever is earlier. In our opinion, the object of adding the new sub-rule must have been to protect the transferee without notice during the interval between the date of making the order and the date of its proclamation and not thereafter, because once the order is proclaimed as provided in Sub-rule (2)," it amounts to constructive notice to all persons including the person who took the property. The fact that our High Court has made this addition to Sub-rule (1) and not to Sub-rule (2) shows that the intention was to protect a person who had taken a bona fide transfer with consideration from the defendant between the date of the making of the order of attachment and its proclamation, because before the order was proclaimed, a third person, who was not a party to the suit, is not expected to have either actual or constructive notice of the making of the order. It is only after the order is proclaimed that he must be deemed to have such constructive notice. No doubt, the new sub-rule added by the other High Courts clearly says that the order takes effect as against the transferee from the date of the knowledge or the date of proclamation whichever is earlier while our new sub-rule does; not expressly say so. But their sub-rule is an independent sub-rule and therefore more expressly worded while our addition is made to Sub-rule (J) only, thereby implying that the provisions of Sub-rule (2) were not to be affected. The effect of both changes is, in our opinion, the same. That being so, and it being clear on the facts of this case that the incumbrance in the plaintiff's favour took place after the proclamation of the attachment, the question becomes immaterial as to whether the plaintiff had actual knowledge of the attachment.
4. It is contended now for the first time by Mr. Desai on behalf of the plaintiff that the order of attachment was itself invalid because the report of the bailiff did not show whether the order was proclaimed by beat of drum or any other customary mode, although it is clear that the order was affixed near the property as well as in the Court-house and the Collector's Office. It appears that it was sought to be argued in the trial Court before remand that the order of attachment was invalid, but the plaintiff's pleader conceded in the lower Court that he was unable to say how the attachment was illegal or invalid, and the learned Judge acted under the presumption under Section 114, ill. (e), of the Indian Evidence Act, 1872, as well as on the decision of the Privy Council in Mohammad Akbar Khan v. Musharaf Shah (1934) L.R. 61 I.A. 371 and held that it must be presumed that all the necessary formalities of proclaiming the attachment had been carried out. We think that it is too late now for the plaintiff to take this point for the first time after remand. The point does not seem to have been argued also in this Court before the remand order was made, and it must, therefore, be taken that all the formalities were complied with and the order of attachment was valid.
5. The result, therefore, is that the decision of the lower Court is confirmed and the appeal is dismissed with costs including those after remand.
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Bombay High Court
Laxmichand Tuljaram Shedji vs The Pioneer Urban Co-Operative ... on 22 November, 1943
Equivalent citations: (1944) 46 BOMLR 522
1. This appeal was remanded to the trial Court for a finding on the issue as to whether the plaintiff had knowledge of the attachment at the date of the mortgage to him. The plaintiff had got a mortgage in his favour of two survey numbers from one Vasudev on June 26, 1933. Before that date, however, the defendant, which is a Co-operative Bank, had filed a suit against Vasudev and had, in execution of the decree obtained against him, attached the two survey numbers on December 9, 1932. Thereafter the plaintiff got them sold in execution of a decree obtained by him against Vasudev to enforce his mortgage and himself purchased one of the lands. The sale took place on December 22, 1936. When the plaintiff tried to recover possession of the survey number, he was resisted by the defendant on the ground that the property had been validly attached by him even before the plaintiff's mortgage and that the plaintiff was bound by the attachment. The plaintiff then filed the present suit for a declaration that the mortgage of the suit lands obtained by him and the execution sale under the decree obtained by him were not affected by the attachment of the. lands made at the instance of the defendant. The trial Court dismissed the suit on the ground that the attachment made at the defendant's instance being prior to the mortgage in the plaintiff's favour, the plaintiff can not claim any higher rights over the land than the defendant's.2. On appeal to this Court, the learned advocate on behalf of the plaintiff appellant contended for the first time that under an addition made by this Court in 1926 to Sub-rule. (1) of Rule 54 of Order XXI, the order of attachment in a case where there was consideration for the transfer was to operate from the date when such order came to the knowledge of the person to whom or in whose favour the property was transferred. There being no evidence in the case as to when the plaintiff came to know of the order of attachment, the matter was remanded to the lower Court for as finding on that point. The lower Court was also asked to determine the question of burden of proof. After the remand both sides led evidence to prove their cases. The learned Judge below believed the evidence of the defendant, disbelieved the plaintiff and his witnesses, and on the circumstances also he was of the opinion that the plaintiff had knowledge of the attachment when he took the mortgage. He sent this issue back with his finding to that effect.
3. In our opinion the material point of time about the plaintiff's knowledge of attachment is the interval between the making of the order of the attachment and the date of its due publication under Sub-rule. (2) of Rule 54. The addition has been made to Sub-rule. (1) of Rule 54, and not to Sub-rule. (2). Sub-rule (1) provides for the attachment being made by an order prohibiting the judgment-debtor from transferring the property and all persons from taking any benefit under such transfer. Sub-rule (2) lays down the method by "which the order of attachment is to be proclaimed. The new Sub-rule, therefore, does not affect the provisions of Sub-rule. (2). It appears that several other High Courts have also added a new sub-rule to the same effect in Rule 54 instead of adding it in Sub-rule (1). It says that the order of attachment shall take effect in the case where there is consideration for the transfer from the date when such order came to the knowledge of the person to whom the property was transferred or from the date when the order is proclaimed under Sub-rule (2) whichever is earlier. In our opinion, the object of adding the new sub-rule must have been to protect the transferee without notice during the interval between the date of making the order and the date of its proclamation and not thereafter, because once the order is proclaimed as provided in Sub-rule (2)," it amounts to constructive notice to all persons including the person who took the property. The fact that our High Court has made this addition to Sub-rule (1) and not to Sub-rule (2) shows that the intention was to protect a person who had taken a bona fide transfer with consideration from the defendant between the date of the making of the order of attachment and its proclamation, because before the order was proclaimed, a third person, who was not a party to the suit, is not expected to have either actual or constructive notice of the making of the order. It is only after the order is proclaimed that he must be deemed to have such constructive notice. No doubt, the new sub-rule added by the other High Courts clearly says that the order takes effect as against the transferee from the date of the knowledge or the date of proclamation whichever is earlier while our new sub-rule does; not expressly say so. But their sub-rule is an independent sub-rule and therefore more expressly worded while our addition is made to Sub-rule (J) only, thereby implying that the provisions of Sub-rule (2) were not to be affected. The effect of both changes is, in our opinion, the same. That being so, and it being clear on the facts of this case that the incumbrance in the plaintiff's favour took place after the proclamation of the attachment, the question becomes immaterial as to whether the plaintiff had actual knowledge of the attachment.
4. It is contended now for the first time by Mr. Desai on behalf of the plaintiff that the order of attachment was itself invalid because the report of the bailiff did not show whether the order was proclaimed by beat of drum or any other customary mode, although it is clear that the order was affixed near the property as well as in the Court-house and the Collector's Office. It appears that it was sought to be argued in the trial Court before remand that the order of attachment was invalid, but the plaintiff's pleader conceded in the lower Court that he was unable to say how the attachment was illegal or invalid, and the learned Judge acted under the presumption under Section 114, ill. (e), of the Indian Evidence Act, 1872, as well as on the decision of the Privy Council in Mohammad Akbar Khan v. Musharaf Shah (1934) L.R. 61 I.A. 371 and held that it must be presumed that all the necessary formalities of proclaiming the attachment had been carried out. We think that it is too late now for the plaintiff to take this point for the first time after remand. The point does not seem to have been argued also in this Court before the remand order was made, and it must, therefore, be taken that all the formalities were complied with and the order of attachment was valid.
5. The result, therefore, is that the decision of the lower Court is confirmed and the appeal is dismissed with costs including those after remand.
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