Judgement JUDGMENT : This is a decree-holder's second appeal from the decree of the Second Additional Civil Judge of Meerut reversing that of the Second Additional Munsif, Chaziabad and dismissing his suit under Order XXI, R. 63 C.P.C., for a declaration that two houses situated in Qasba Khekra were liable to attachment and sale in execution of a decree obtained by the plaintiff. The facts are these :- The appellant Trilok Chand filed a suit against one Gyani for recovery of money due on a bond and obtained an order under O. XXXVIII R 5 C.P.C. for the attachment of the two houses before judgment. The suit was decreed and the appellant applied for the sale of the houses in execution, but the respondent, Surja, applied for the removal of the attachment on the ground ' that the two houses had been purchased by him from Gyani for a sum of Rs. 1000. The Court allowed the objection and released the two houses from attachment. The appellant then filed the present suit under Order XXI. Rule 63 C.P.C. He alleged that the sale deed in favour of Surja was collusive, without consideration, and executed with the object of defeating the creditors of Gyani. The defendant resisted the suit and alleged that the sale deed was genuine and that he had purchased the two houses for a sum of Rs. 1000. 2. The trial Court believed the version of the appellant and disbelieved that of the respondent, and held that the sale deed executed by Gyani in favour of defendanl Surja was collusive, fictitious, and without consideration. He decreed the suit. But on appeal the learned Civil Judge reversed the findings of the trial Court and held that the plaintiff had not proved that the sale deed was fictitious or without consideration. He dismissed the suit, and the plaintiff has now come up to this Court in second appeal. 3. I have heard Mr. Ambika Prasad for the appellant and Mr. Ramesh Sharma for the respondent at considerable length. I have also read the judgments of the Courts below and perused the entire oral and documentary evidence I am of the opinion that the decision of the lower appellate Court is erroneous. 4. The learned Judge has found that plaintiff "has not proved that Gyani had executed Ex. A-5 a registered sale deed dated 3-11-51 for no consideration". I have also read the judgments of the Courts below and perused the entire oral and documentary evidence I am of the opinion that the decision of the lower appellate Court is erroneous. 4. The learned Judge has found that plaintiff "has not proved that Gyani had executed Ex. A-5 a registered sale deed dated 3-11-51 for no consideration". This is a finding of fact which ordinarily would be binding on this Court in second appeal unless it is vitiated by any error of law. I regret that the learned Civil Judge committed several such errors while assessing the evidence of the parties While considering the question whether Surja had paid Rs. 1000 as consideration to Gyani, he observed "Gyani has not appeared to deny the receiving of the sale consideration. He had not been even impleaded as a defendant in the suit instituted by the plaintiff respondent." As I understand his observation, the learned Judge thought that the plaintiff should have produced Gyani to prove that Gyani had executed a fictitious and fraudulent sale-deed. This was a wrong approach to the question of onus of proof to say the least. There is no onus on a decree-holder alleging that a sale-deed affecting his right to attach the property is fraudulent to produce as his witness the very party against whom fraud is alleged. Secondly, summoning him would be futile as no person can be compelled on oath to admit that he conspired to cheat the Court and abuse the process of the law. Thirdly a decree-holder in a suit under Order XXI, Rule 63 C.P.C. is not ordinarily required to implead the vendor of the disputed sale, for his right to attach the property is not disputed by the vendor but the vendee the vondor having declared that the property does not belong to him and he has no interest in it. Therefore, the learned Judge was not entitled to draw any adverse inference against the plaintiff for his omission to implead Gyani as a co-defendant or produce him as a witness. As he was obviously influenced by this omission while assessing the evidence of the parties, his finding is vitiated. 5. But there are other errors. The respondent Surja had admitted that he obtained no receipt when he paid a sum of Rs. 1000 to Gyani and the plaintiff submitted that this was unusual conduct. As he was obviously influenced by this omission while assessing the evidence of the parties, his finding is vitiated. 5. But there are other errors. The respondent Surja had admitted that he obtained no receipt when he paid a sum of Rs. 1000 to Gyani and the plaintiff submitted that this was unusual conduct. Now it was open to the learned Judge to consider any reasonable explanation offered by Surja of this unusual conduct. But he merely observed, "There was nothing unusual in Surja's handing over Rs. 1000 to Gyani, even without a receipt." 6. Then again, Surja had said in cross-examination that he had a sum of Rs. 1250 ready in the house and that he had kept this amount in a leather-bag in his house. The plaintiff contended that this was unusual conduct which made the defendant's story unworthy of credence. It was open to learned Judge to accept any explanation by Surja for having been kept this large sum of money in his house in a village for a whole year. But the learned Judge merely observed, "There is nothing unusual in it." In this he was in error. While assessing the evidence of the parties, the lower appellate court cannot ignore evidence establishing a course of conduct which is manifestly unusual, by giving it a label, "nothing unusual", though it may accept any explanation for such conduct. Section 114 of the Evidence Act empowers the Court to presume the existence of any fact which it 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. If the Court abuses the powers conferred by this section by calling manifestly unusual conduct as "nothing unusual", and this perverse approach affects its assessment of evidence, its findings are vitiated. In this case there was no explanation for the respondents unusual conduct, but the court got round it by labelling it "nothing unusual." The funding of the lower appellate court that the plaintiff did not prove that the sale-deed Ext. A-5 was without consideration must be set aside. 7. The next question is whether I should remand this case for a fresh finding by the lower court or decide the question myself. A-5 was without consideration must be set aside. 7. The next question is whether I should remand this case for a fresh finding by the lower court or decide the question myself. I do not think that a remand will be in the interest of justice, as the suit was filed in 1956 and a remand will cause a further delay in the derision of the dispute between the parties Moreover the entire evidence has already been read out before me and I have perused the relevant documents filed by the parties I asked learned counsel to argue the question on merits. After hearing them I am of the opinion that the finding of the trial court is correct It is not necessary for me to repeat its reasons with which I agree I may give additional reasons for disbelieving the defendant's story that the sale deed was executed for consideration. He said that he paid the money without obtaining a receipt and even without the possession of the house To me this appears incredible. Moreover, his statement conflicts with that of his principal witness, Imamuddin, D.W. 2, who asserted that he (the defendant) obtained possession of the property before paving the money. I am satisfied on the evidence that the sale deed was fictitious and without consideration. 8. This appeal must be allowed. I reverse the decree of the lower appellate court, restore that of the trial court and decree the plaintiff's suit with costs throughout. Appeal allowed.