M. Marathachalam Pillai v. Padmavathi Ammal And Others

J.C Shah, J.— G.H Muhammad Yousuff Sait — hereinafter called “Sail”— was the owner of a house at Ootacamand. M. Marathachalam Pillai — hereinafter called “Pillai” — obtained a money decree against Sait and attached the house belonging to Sait in execution of the decree on August 7, 1956. The house was then put up for sale and was purchased by Pillai with the leave of the court on February 7, 1958. In obtaining possession of the House Pillai was obstructed by Padmavathi (respondent in this appeal) who claimed that she had purchased it for Rs 15,000 under a private sale from at on October 9, 1956. The executing court ordered in a summary enquiry that the obstruction raised by Padmavathi be removed. Padmavathi then filed a suit in the civil court for setting aside the summary order. The trial court dismissed the suit against Pillai holding that the house had been properly attached and the sale being contrary to the attachment levied by Pillai was void against all claims thereunder. In appeal the High Court of Madras held that the attachment was not made according to law, since the requirements of Order 21, Rule 54, Code of Civil Procedure had not been complied with. The High Court reversed the decree, and decreed Padmavathi's suit. Pillai has filed this appeal with certificate granted by the High Court.

Section 64 of the Code of Civil Procedure provides:

“Where an attachment has been made, any private transferor 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.— * * *”

2. When property is attached in execution of a decree, any private transfer of that property contrary to such attachment is by Section 64 declared void as against all claims enforceable under the attachment. For the bar of Section 64 to operate, there must however be an effective attachment. Under Order 21, Rule 54, Code of Civil Procedure (as modified by the High Court of Madras) reads as follows:

“(1) Where the property is immovable the attachment shall be made by 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.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order shall be affixed on a conspicuous part of the property and on conspicuous part of the court house. Where the property is land paying revenue to the Government a copy of the order shall be similarly affixed in the office of the Collector of the district where the land is situated. Where the property is situated within the Cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the Military estate officers concerned, and where the property is situated within the limits of the Municipality, in the office of the Municipality within the limits of which the property is situated.

(3) The order of attachment shall be deemed to have been made as against transferees without consideration from the judgment-debtor from the date of the order of attachment, and as against all other persons from the date on which they respectively had knowledge of the order of attachment, or the date on which the order was duly proclaimed under sub-rule (2) whichever is the earlier.”

3. The rule requires that the attachment shall be proclaimed at some place on or adjacent to the property by beat of drum or other customary mode; a copy of the order shall be affixed on a conspicuous part of the property and where the property is situated within the limits of a Municipality a copy of the order shall be affixed in the office of the Municipality within the limits of which the property is situated. The High Court of Madras held that there had been no effective attachment because there had been no proclamation by beat of drum as required by sub-rule (2) of Rule 54 of Order 21, and a copy of the order was not affixed in the office of the Municipality.

4. In support of the case that there had been an effective attachment by proclamation by beat of drum, Pillai examined the Amin of the Court DW 1, and his own son Vishwanathan, DW 6. He relied upon the report, dated August 7, 1956. Padmavathi examined in support of her case, that there had been no proclamation by beat of drum, R.F Stoney PW 1 a tenant of the house and L. Joseph — Stoney's Secretary and motor-driver. On a review of the evidence, the High Court was of the opinion that the testimony of the Amin was unreliable on account of several infirmities and inconsistencies. The High Court pointed out that Pillai who was present and who had signed the Amin's report of attachment did not enter the witness box. No witnesses from the locality were examined by Pillai.

5. The High Court was impressed by the testimony of R.F Stoney who is a retired Engineer and his driver L. Joseph. It is true that there is on the record the report of the Amin which purports to bear the signatures of as many as 12 persons in acknowledgment of attachment being effected by the proclamation by beat of drum. But none of those witnesses has been examined. We have been taken through the evidence of R.F Stoney and L. Joseph and of the Amin and Vishwanathan, son of Pillai. On a consideration of the evidence, we do not see any reason to disagree with the High Court that no attachment was levied as required by law. Relying upon Section 64, Code of Civil Procedure the private transfer of property in favour of Padmavathi cannot be deemed to be void as against the claims enforceable under the attachment of the property by Pillai.

6. But Mr Chagla appearing on behalf of Pillai raised an alternative contention. He said that at the time of sale there was another outstanding attachment and the sale in favour of Padmavathi being contrary to such attachment was, in any event, void. It appears that on January 17, 1956, Pillai had in execution of a decree obtained in Suit 55 of 1953, attached the property, but that attachment was removed on March 23, 1957, on satisfaction of the decree. By Section 64, Code of Civil Procedure, the attachment is only void as against all claims enforceable under the attachment, and it is not void generally. Since the attachment effected on January 17, 1956 was removed, any private alienation contrary to such attachment cannot be regarded as void for there are no claims enforceable under the attachment, dated January 17, 1956.

7. The appeal therefore fails and is dismissed with costs.