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2003 DIGILAW 115 (AP)

Peta Thallamma v. P. Gopalakrishna Murthy

2003-01-22

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS is an appeal filed against the judgment and decree dated 9th April 1991 in A. S. No. 55 of 1986 on the file of the I Additional District Judge, East Godavari at Rajahmundry setting aside the judgment and decree dated 02-3-1985 in O. S. No. 15 of 1981 on the file of the Subordinate Judge, Amalapuram. Defendants 3 and 4 in the suit filed this appeal. Reference to the parties will be made in the course of this judgment as they are arrayed in the trial Court. ( 2 ) NECESSARY facts for the disposal of this appeal are as follows: Rajani Silk Palace filed a suit in O. S. No. 510 of 1976 on the file of II Additional District Munsif, Amalapuram against the 1st defendant and obtained a money decree. It sought for attachment before judgment of Ac. 3. 58 Cents of undivided half share of the 1st defendant in R. S. No. 90/4 of K. Jagannadhapuram Village in Amalapuram Taluq. The attachment before judgment was ordered by the trial Court. It was effected on 15-10-1976. Subsequently, the attached property was brought to sale. The plaintiff purchased the said property in court auction on 25-06-1979. The sale was confirmed on 25-07-1979. Sale Certificate was granted in favour of the plaintiff by executing Court. The remaining half share in the plaint schedule property belongs to the 2nd defendant. Defendant 3 and 4 obtained separate registered sale deeds dated 26-12-1977 (Ex. B1) and Ex. B-2) from the 1stdefendant regarding different extents of land in R. S. No. 90/4. The Plaintiff Filed the suit for partition and separate possession of half a share of 1st defendant purchased by him in court auction. Defendants 1 and 2 remained ex parte in the suit. They did not contest the suit. Defendants 3 and 4 alone contested the suit. Originally, they claimed that they purchased Ac. 0. 42 Cents and Ac. 1. 42 cents respectively under Exs. B1 and B2 sale deeds and took possession of the said property on the same day. Subsequently, they amended the written statement and pleaded that about 1 1/2 years prior to Exhibits B1 and B2, under agreements of sale they purchased the property in question and took possession there of and subsequently they obtained registered sale deeds Exs. B1 and B2. In Ex. Subsequently, they amended the written statement and pleaded that about 1 1/2 years prior to Exhibits B1 and B2, under agreements of sale they purchased the property in question and took possession there of and subsequently they obtained registered sale deeds Exs. B1 and B2. In Ex. B-1 and B-2, there was no reference to prior sale agreements. They claimed that they had no knowledge about attachment before judgment. They also denied that there was any at tachment of suit property. They claimed that they are bonafide purchasers for value and without notice of attachment and the attachment was not binding on them. According to them the sales in their favour are not void sales and those sales bind the plaintiff. On the basis of the pleadings of both the parties the trial Court settled appropriate issues for trial. The trial Court disbelieved the version of defendants 3 and 4 that about 1 1/2 years prior to Exs. B1 and B2 sale deeds they purchased the property under agreements of sale and took possession. The trial Court further held that the attachment was made, it was proclaimed at the attached property and in the village where the property was situate. It further held that the copy of order of attachment was not affixed in a conspicuous place in the office of the District Collector and therefore the attachment is void. Therefore, the trial Court held that the sale deeds Exs. B1 and B2 are not void. Accordingly, the trial Court dismissed the suit for partition. The plaintiff preferred an appeal against the judgment and decree of the trial Court. The appellate court concurred with the finding of the trial Court that the defendants 3 and 4 did not purchase the property under agreements of sale prior to Exs. B1 and B2 sale deeds. Regarding the attachment the lower appellate Court also held that copy of order of attachment was not affixed in the office of the District Collector. However, the lower appellate Court held that the said omission is an irregularity and the attachment is valid and binding on the defendants. Accordingly, the lower appellate Court set aside the judgment of the trial Court and decreed the suit of the plaintiff. In the suit plaintiff claimed past and future mesne profits. However, the lower appellate Court held that the said omission is an irregularity and the attachment is valid and binding on the defendants. Accordingly, the lower appellate Court set aside the judgment of the trial Court and decreed the suit of the plaintiff. In the suit plaintiff claimed past and future mesne profits. The lower appellate Court held that the plaintiff is entitled for future mesne profits only from the date of the suit. It gave liberty to the plaintiff to file a separate application for final decree for partition and for ascertainment of future mesne profits. Aggrieved by the judgment and decree of the Lower Appellate Court defendants 3 and 4 preferred the present appeal. ( 3 ) AT the time of admission of this appeal the learned Admission Judge treated the following points formulated in the memorandum of grounds of appeal as substantial questions of law that arise for consideration in the present appeal. (i) Whether the order dated 15-10-76 was not void under Order 38, Rule 5 (4) C. P. C. ? (ii) Whether the failure to affix the order of attachment in the office of the Collector does not render the attachment invalid? (iii) Whether Exs. B1 and B2 sale deeds will be void, even when the attachment was invalid for non-compliance with Order 21, Rule 54 (2) C. P. C. ? (iv) Whether the court sale in execution at which the plaintiff purchased the suit property under Ex. A1 sale certificate, dated 25-7-79, was not void as the order dated 15-10-1976 attaching the property itself was void? Points: ( 4 ) BEFORE taking up consideration of substantial questions of law I would mention one important aspect. Both trial Court and lower appellate Court disbelieved the version of the defendants 3 and 4 that they purchased the property about 11/2 years prior to the sale deeds Exs. B1 and B2. The trial Court held that the sale deeds Exs. B1 and B2 are true and valid. The lower appellate Court after discussing evidence adduced by the defendants regarding Exs. B1 and B2 sale deeds categorically observed in para 18 of its judgment that the conduct of the defendants 1 to 4 and the contradictory evidence of DWs. 1 and 5 is creating a doubt about the genuineness of the sales and the bonafidies of the defendants 3 and 4 in purchasing the lands. B1 and B2 sale deeds categorically observed in para 18 of its judgment that the conduct of the defendants 1 to 4 and the contradictory evidence of DWs. 1 and 5 is creating a doubt about the genuineness of the sales and the bonafidies of the defendants 3 and 4 in purchasing the lands. After making those observations the lower appellate Court further observed that as the plaintiff did not ask for the relief to set aside the sales, there is no necessity for giving any definite finding regarding the genuineness of the sale deeds and it is sufficient if it is established that the attachment is valid to make the sales void under law. ( 5 ) THE attachment was effected on 15-10-76. The sale transactions in favour of the D3 and D4 under Exs. B1 and B2 sale deeds are subsequent to the said attachment. Section 64 C. P. C. lays down that where an attachment has been made, any private transfer or delivery of the property attached or of any interest there in and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all the claims enforceable under the attachment. If the attachment made on 15-10-1976 is valid and binding it automatically follows that the transactions under Exs. B1 and B2 sale deeds are void transactions as against all claims enforceable under the attachment ( 6 ) FOR proper appreciation of the contentions advanced by the learned counsel for the appellant it is necessary to extract the provisions in Section 64 Order 21, Rules 54 (2), 66 (1) and 67 (1) of C. P. C. Those provisions read as follows: SECTION 64: Private alienation of property after attachment to be void (1) 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 moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment. (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. (2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. ORDER 21 RULE 54 [2] CPC: (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land-paying revenue to the Government, in the office of the Collector of the district in which the land is situate [and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village]. ORDER 21 RULE 66[1] OF CPC: (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. ORDER 21 RULE 67[1] CPC: (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2 ). ( 7 ) IT is forcibly contended by the learned Advocate for the appellants that the attachment shall be proclaimed at some place or adjacent to such property by beat of drum, a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court house and also where the property is land paying revenue to the Government in the office of the Collector of the District in which the land is situated. It is his contention that affixture of copy of attachment order at all the places mentioned above is mandatory and it is not sufficient if copy of the order of attachment is affixed at some of the above places only. It is his contention that in the present case as the copy of the order of attachment was not affixed in a conspicuous place in the office of the District Collector; the attachment is void and not enforceable. It is his contention that in the present case as the copy of the order of attachment was not affixed in a conspicuous place in the office of the District Collector; the attachment is void and not enforceable. On the other hand it is the contention of the respondent-plaintiff that if there is proclamation regarding the attachment at the property attached and in the village where the property is situated it is sufficient compliance with the provision in Order 21, Rule 54 C. P. C. and just because the copy of order of attachment was not affixed in the notice board of the District Collector, the attachment cannot be held as invalid and not binding. ( 8 ) THE relevant provisions were extracted supra. Order 21, Rule 66 [1] C. P. C. deals with proclamation of sale notice. Order 21 Rule 67[1] C. P. C. deals with mode of proclamation of sale. It lays down that sale proclamation shall be made in the manner prescribed by Rule 54[2]. Order 21, Rule 54 C. P. C. relates to proclamation of the order of attachment. The said procedure is to be followed for proclamation of sale. The learned counsel for the respondent relied upon two binding decisions of two Division Benches of this court. In a decision reported in H. H. CHETHANDOSJI VARU v. T. T. DEVASTHANAMS the court considered a case where proclamation of sale was not affixed in the office of the Municipality and the consequential question whether it vitiated the Court sale. The Court held that it is not a material irregularity, material irregularities per se will not in validate a sale and such irregularities will have the effect of avoiding the sale only if the connection is established between them and the inadequacy of price realized at the sale. The procedure of proclamation of sale is same as the procedure for proclamation of order of attachment. The principle of law laid down in the above decision makes it clear that mere omission to affix the order of attachment in the notice board of the office of the District Collector does not vitiate the entire attachment proceedings. ( 9 ) ANOTHER decision relied upon is a decision of this court reported in G. BUCHAIAH v. D. KOTAIAH. The principle of law laid down in the above decision makes it clear that mere omission to affix the order of attachment in the notice board of the office of the District Collector does not vitiate the entire attachment proceedings. ( 9 ) ANOTHER decision relied upon is a decision of this court reported in G. BUCHAIAH v. D. KOTAIAH. Following the above decision of this court reported in 1965 (1) Andhra Weekly Reporter 194, another division bench of this court held in Buchaiah s case (2 supra) that the circumstance that the sale proclamation was not affixed in the Revenue Divisional Officer s Office cannot constitute a material irregularity when in fact there was tom tom in the village and there was sufficient publicity. It further held that even if there is a material irregularity in sale proclamation, to set aside the sale it must be established that there was substantial injury to the applicant by reason of that irregularity. In the present appeal the appellants did not establish that there was any substantial injury to them by the reason of non-affixture of copy of order of attachment in the notice board of the office of the District Collector. Further defendants 3 and 4 did not file any application within prescribed period of limitation under Order 21 Rule 90 CPC in executing court to get the court sale set aside. ( 10 ) TO get over these binding decisions of this court the learned counsel for the appellants relied upon some decisions. The main decision is a judgment of Madras High Court reported in PADMAVATHI AMMAL v. MARUTHACHALAM PILLAI. The Madras High Court held that in the case of attachment of immovable property, the attachment to have the effect of invalidating a private sale under section 64 C. P. C. , all the requirements of Order 21, Rule 54 of C. P. C. have to be strictly adhered to and punctiliously followed. It further held with reference to every one of steps to be taken under Order 21, Rule 54 (2) C. P. C. , the language used is imperative. It held that the legislature has made no distinction between one step and another and all of them are aimed at the same purpose. In that case also there was no affixture of copy of order of attachment in the Municipal office. It held that the legislature has made no distinction between one step and another and all of them are aimed at the same purpose. In that case also there was no affixture of copy of order of attachment in the Municipal office. With respect to the learned Judges who rendered the above judgment I cannot follow the principles of law laid down in the above judgment in view of the binding decisions of this court referred to supra. ( 11 ) RELIANCE was placed by the learned counsel or the appellant on a Judgment the Supreme court reported in DELHI MUNICIPALITY v. JAGDISH. The facts of that case are the Prosecutor of Delhi Municipal Corporation filed a complaint before the Magistrate under provisions of Food Alteration act. The accused was acquitted. Thereupon the Delhi Municipal Corporation made an application to the High Court seeking special leave under Section 417 Cr. P. C. to appeal against the order of acquittal. It was contended before the High Court that as the appeal was not filed by the Prosecutor who filed the complaint before the trial Court the special leave cannot be granted to the Municipal Corporation to file the appeal. Section 476 of Delhi Municipal Corporation Act, 1957 confers power on the Commissioner to institute and prosecute any suit or other legal proceeding. The Supreme Court held that the phrase "other legal proceedings" includes the power to institute a complaint before the Magistrate and hence it is the Commissioner alone who could exercise the power, as there is no other provision in the Act, which confers such power on any one. The Apex Court held that the Municipal Prosecutor who filed the complaint was only acting in a representative capacity and that Delhi Municipal Corporation was the complainant within the meaning of Section 417 (3) Cr. P. C. and the petition for special leave and the appeal petition was properly instituted by the Delhi Municipal Corporation. The attention of this court was invited to the observation made by the Apex Court at the end of para 3 of its judgment to the effect that where power is given to do a certain thing in a certain way the thing must be done in the way or not at all. These observations have no relevancy to the facts of the present appeal. These observations have no relevancy to the facts of the present appeal. Number of modes of proclamation of orders of attachment or sale are prescribed by Legislature to give wide publicity so that bonafide purchasers do not suffer. It does not mean that each and every mode of proclamation is mandatory. It will suffice if there is wide publicity to put on notice would be purchasers from the owners of the property attached and subsequently sold in court auction. ( 12 ) RELIANCE was also placed on another judgment of the apex Court reported in VENKATESWARA RAO VS. GOVERNMENT OF ANDHRA PRADESH. This judgment deals with provisions under A. P. Panchayat Samithis and Zilla Parishads Act, 1959. On a consideration of the facts and principles of law in the above decision I am of the opinion that the said decision has no application to the facts of the present appeal. It is not necessary to reiterate the facts and principles of law in the above decision. ( 13 ) ANOTHER decision of Apex Court relied upon is reported in NARINDERJIT SINGH v. STATE OF U. P. Land Acquisition Proceedings were questioned in that case. A notification was issued under Section 4 (1) of the Land Acquisition Act, 1984. The District Collector published the notification in the official gazette. However, he did not cause public notice of the substance notification to be given at convenient places in the locality where the land said to be acquired was situated. The Apex Court held there was no compliance whatsoever with the second part of Section 4 (1) of Land Acquisition Act. It held that the law as settled by the Apex Court is that such a notice under second part of Section 4 (1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. In my considered opinion the decisions of the Apex Court relied upon by the learned counsel for the appellant have no application to the facts on hand. The question whether all the requirements of proclamation of sale are mandatory or not, fell for consideration before two Division Benches of this court noticed above and in those two decisions this court categorically held that compliance with different modes of proclamation is not mandatory and non-compliance with one of the modes viz. The question whether all the requirements of proclamation of sale are mandatory or not, fell for consideration before two Division Benches of this court noticed above and in those two decisions this court categorically held that compliance with different modes of proclamation is not mandatory and non-compliance with one of the modes viz. , non affixture of notice in Revenue office does not amount to material irregularity and the private sales will be valid only if it is shown that substantial injustice was done to the persons who purchased the property under private sales by virtue of non-compliance with the provisions in Order 21, Rule 66 C. P. C. or Order 21, Rule 54 C. P. C. as the case may be. I have already stated that the lower appellate Court after discussing the evidence adduced by the appellants-defendants came to the conclusion that the sales under Exs. B1 and B2 are not genuine transactions. Thus no substantial injury by non-affixture of copy of order of attachment in District Collector s office was established by appellants. I therefore do not find any ground to interfere with the well-considered judgment of the lower appellate Court. There are no merits in the present appeal. ( 14 ) IN the result the appeal is dismissed with costs.