Vijaya College Trust v. Kumta Co-Operative Arecanut Sales Society

Mirdhe, J.:— This Appeal is filed under Section 96 read with Order XXI Rule 58(4) of the Code of Civil Procedure against the order dated 15.1.1993 passed by the Second Additional Civil Judge, Mangalore, Dakshina Kannada District in Miscellaneous Case No. 54 of 1989 dismissing the petition filed by the appellant under Order XXI Rule 58 of the Code of Civil Procedure for raising attachment of the properties in question.

2. We have heard the learned Counsel for the appellant and the learned Counsel for the respondents and perused the records of the case.

3. The facts leading to this Appeal are as follows:

That the appellant purchased the Survey Numbers 1-25, 1-1, 1-3 of Bappanad village of Mangalore Taluka along with some other properties under Sale Deed dated 31.3.1979 and other sale deeds dated 6.3.1981 The first respondent claimed that these properties have been attached before judgment in the Arbitration Suit filed by him. A decree was made by the Arbitrator against respondent No. 2. Respondent No. 1 filed an Execution Petition and got the properties attached. Appellant filed a Miscellaneous Case for raising of that attachment and that application came to be dismissed. Hence this Appeal.

4. Undisputed facts in this case are:

That the said properties were the ownership of one Pangal Annappa Nayak. He by his Gift Settlement Deed dated 11.3.1953 settled these properties in favour of his sister Smt. Ammanni alias Rukmini Amma. She on 24.6.1963 as per Exhibit P-13 granted lease for 20 years in favour of the Academy of General Education, which was the predecessor in interest of the appellant. Subsequently, the said properties have been sold to the appellant-Trust by the sons of Ammanni. It also cannot be disputed in this case that the first respondent obtained a decree against the second respondent. The contention of the first respondent is that these properties came to be attached before judgment on 27.3.1976 and the award came to be passed on 11.1.1977 Though the Execution Petition came to be filed in the year 1979, that Execution Petition came to be closed on 9.7.1982

5. Learned Counsel for the appellant argued as follows:

That the properties in question are not the joint family properties of the respondent No. 2, that the properties were of the ownership of one Pangal Annappa Nayak who settled these properties on his sister Ammanni alias Rukmini Amma by a Gift Settlement Deed dated 11.3.1953, and therefore the properties can never be joint family properties of respondent No. 2; that by virtue of the partition deed dated 12.6.1967 there was a partition of the properties among the sons of Ammanni alias Rukmini Amma; that the properties were never attached before judgment though there was an order of attachment of Page: 1140the properties before judgment in the Arbitration Proceedings; that even by virtue of closure of the Execution Case filed in the year 1979 which came to be closed on 9.7.1982, the attachment came to an end; that therefore the Sale Deed in favour of the [appellant] be affected by the decree obtained by respondent No. 1 against respondent No. 2 and that since there was no attachment actually effected in the Arbitration Proceedings, there was no bar for one of the sons of Ammani @ Rukmini Amma to alienate the properties. On the basis of these arguments he prayed to allow the Appeal and also to allow the petition filed by the appellant under Order XXI Rule 58 of the Code of Civil Procedure.

6. Learned Counsel for the respondents argued as follows:

That though the properties came to Smt. Ammanni Alias Rukmini Amma by virtue of the Gift Settlement Deed executed by her brother Pangal Annappa Nayak on 11.3.1953, after the death of Ammanni @ Rukmini Amma the properties came to be treated as joint family properties of her sons; that these properties were blended with some other properties of the joint family; that the averments in Exhibit P-14 Partition Deed - go to show that the sons of Smt. Ammanni @ Rukmini Amma treated these properties as joint family properties; that when the properties in question are the joint family properties of respondent No. 2, he (respondent No. 2) gets a right in it and a share of respondent No. 2 is liable to be sold for the decretal dues of respondent No. 2; that respondent No. 1 has produced a copy of the order of attachment before judgment, which goes to show that the properties were attached before judgment, and, therefore, Narayanrao and his sons could not have sold these properties to the appellant; that there is a presumption that the official acts have been done in accordance with law; and that the fact of there being an order of attachment before judgment is not disputed in this case which leads to an inference that the attachment was in fact effected and the closure of Execution Petition on 9.7.1982 cannot lead to inference that the attachment before judgment was raised; that Execution Petition was closed on account of some default on the part of the decree holder in taking steps, and that therefore it cannot be said that the attachment was not effected in fact; that the fact of attachment before judgment is also noted in the Settlement Registers & that since Page: 1141the appellant has no title and since Narayanarao and his sons sold the lands during the subsistence of attachment before judgment over these properties, he has no locus standi to file a petition under Order XXI Rule 58 of the Code of Civil Procedure. On the basis of these arguments, learned Counsel submitted that the Appeal may be dismissed confirming the order of the Trial Court.

7. Two Points that arise for Consideration in this case are:

1. Whether the properties purchased by the appellant from Narayanarao namely Survey Nos. 1-25. 1-1 and 1-3 of Bappanad village, are the joint family properties of respondent No. 2 so as to give him a right with the said properties?

2. Whether there was attachment before judgment effected in fact as per the orders of respondent No. 1 in Arbitration Proceedings, in which an award came to be passed on 11.1.1977?

Another Question that arises for Consideration incidentaly is as to what is the effect of the closure of the Execution Petition on 9.7.1982 on the attachment before judgment effected earlier in the Execution Petition.

8. It is not disputed in this case that the properties namely Survey Nos. 1-25, 1-1 and 1-3 were the properties of the ownership of Annappa Nayak and Ammanni Alias Rukmini Amma is his sister. It is also not disputed in this case that by the Gift Settlement Deed at Exhibit P-12 dated 11.3.1953 Annappa Nayak gifted these properties in favour of his sister and her sons. It is well settled that the ancestral property is the property inherited by a male Hindu from his father, father's father or father's father's father. The property inherited by a person from the other sources is his separate property. The property inherited from females cannot be ancestral. In Muhammad Husain Khan v. Babu Kishna Nandan Sahai AIR 1937 PC 223, the Privy Council has held as follows:

“The word ‘ancestor’ in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line: but the ‘ancestral’ estate in which under the Hindu law, a son acquires Page: 1142jointly with his father an interest by birth must be confined, as shown by the original text of the Mitakshara, to the property descending to the father from his male ancestor in the male line. Hence the estate, which is inherited by father from his maternal grandfather, cannot be held to be ancestral property in which his son has an interest jointly with him.”

In this case, admittedly, the properties were of the ownership of Annappa Nayak the brother of Smt. Ammanni alias Rukmini Amma. Smt. Ammanni got this property by virtue of the Gift Settlement Deed dated 11.3.1953 Though it is mentioned in the deed that the properties were settled in favour of Smt. Ammanni alias Rukmini Amma for her benefit and his sons, after the death of Smt. Ammanni the property has come to her sons. One of her sons is Narayanarao father of Respondent No. 2. Smt. Ammanni died on 8.12.1965 After her death, the property which came to her by virtue of the Gift Settlement Deed was divided between her sons on 12.6.1967 as per Exhibit P-14. It cannot be disputed that during the life time of Ammanni alias Rukmini Amma the properties were not the joint family properties of respondent No. 2 so as to give him a right over the said properties. The contention of the learned Counsel for respondent No. 1 is that after the death of Ammanni alias Rukmini Amma the property came to be treated as joint family property. It is also the contention of respondent No. 1 that certain other properties were blended with the properties that were gifted to Ammanni alias Rukmini Amma under the Gift Settlement Deed. The argument that these properties become joint family properties of respondent No. 2 on account of these properties having been blended with some other properties of the family, cannot be accepted because there is no evidence to show that the family of respondent No. 2 had any property prior to the Gift Settlement Deed in favour Rukmini Amma as per Exhibit P-12. In fact, the averments of exhibit P-12 read as follows:

These averments clearly go to show that Smt. Ammanni alias Rukmini Amma and her sons had no source of income and for that purpose only, out of affection for Ammanni alias Rukmini Amma, her brother executed that Gift Settlement Deed in respect of the aforesaid properties. Therefore, it is difficult to accept that there was any ancestral property of respondent No. 2 which came to be blended with these properties so as to give him (R-2) a right over these properties. Learned Counsel for the respondents relied on a Decision of this Court in Commissioner Of Gift-Tax, Mysore v. Marutrarao Nayakoji Kadam. 1967 (1) MLJ 290, wherein it has been held that a member of Hindu Mitakshara family can throw his self-acquired property into the common hotch-pot and thus impress it with the character of joint-family property. This principle would have come into play in this case provided it was proved that respondent No. 2 had some ancestral property which came to be blended or put in hotch-pot with these properties. The averments in Gift Settlement Deed go to show that the family of Rukmini Amma had no other properties prior to this Gift Settlement Deed. Learned Counsel for the respondents submitted that the averments in Exhibit P-14 go to show that these properties were treated as ancestral property by the sons of Ammanni alias Rukmini Amma. He relied on the averments in Ex. P-14 like:

“Wandeneyavan Yajamanki”

“Samashti Hakkina Astigalannu”

“Saras - niras Watani..”

Because of such expression in Exhibit P-14, learned Counsel submits that the properties were treated as ancestral properties by Rukmini Amma's sons. It cannot be disputed in this case that during the life of Rukmini Amma, the properties were not the ancestral properties of respondent No. 2 or his father. The properties came to respondent No. 2's father only after the death of his mother. The properties inherited from a Hindu female cannot be the ancestral properties. Moreover, there is no evidence to show that the ancestral properties were blended with these properties so as to impress it with the character of ancestral properties. In view of these circumstances, Page: 1144these properties cannot be held to be ancestral properties on account of some expression found in Exhibit P-14. Even the conduct of parties is not such in this case so as to make these properties ancestral properties. After the death of Rukmini Amma, the properties came to be divided as per Exhibit P-14 between her sons. Another ground on which it is sought to be made out that the properties are the ancestral properties of respondent No. 2 is that he (R-2) has joined along with his father in executing the Sale Deed. In Exhibits P-1 to P-4 respondent No. 2 has also joined as one of the executants for sale of the properties in favour of the appellant. It is a common experience that when a sale is taken some-times the purchaser by way of abundant caution also makes other close relations like sons, etc. to join in that Sale Deed. Merely because respondent No. 2 has joined in execution of Exhibits P-1 to P-4, it cannot be said that the properties are the ancestral properties of respondent No. 2. Therefore, it will have to be held that the properties are not the ancestral properties of respondent No. 2; and when the properties are not the ancestral properties of respondent No. 2, such properties will not be available either for attachment or sale for the satisfaction of decretal dues against respondent No. 2.

9. The other ground on which the order of the Trial Court is challenged is that there was in fact no attachment in the Arbitration Proceedings, and, therefore, there could not have been any bar for Narayanarao and his sons to sell the properties. The claim petition for the dues of respondent No. 1 against respondent No. 2 came to be filed on 17.3.1976 and the award came to be passed on 11.1.1977 Respondent No. 1 is relying on Exhibit R-1 dated 27.3.1976, which is an order of attachment before judgment and Exhibit R-3 which is an award passed against Respondent No. 2 dated 11.1.1977 There is a reference made in this award to the order of attachment before judgment which is said to have been confirmed on 5.7.1976 Exhibit R-1 goes to disclose that the order of attachment before judgment came to be passed on 27.3.1976 This has also been noted in Exhibit R-6 the Settlement Register. There is also a reference to the order of attachment before judgment which is said to have been confirmed 5.7.1976 in the award dated 11.1.1977 Exhibit R-3. But the question is whether merely from the order of attachment before judgment can the Court infer that the attachment in fact was effected. In Page: 1145AIR 1928 PC 1393, the Privy Council after considering the provisions of Order XXI Rule 54 of the Code of Civil Procedure regarding attachment, has held that the attachment itself is something different from the mere order of attachment, and it is something which has been done or effected before judgment, which can be declared to have been accomplished. Their Lordships of the Privy Council after quoting Order XXI Rule 54 have observed as follows:

“In view of these provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could dispense with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another from these propositions. The order is one thing, the attachment is something. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.”

In 1972 (2) Mysore Law Journal 3994, this Court has held as follows:

“There must be first an order of attachment and secondly in execution of that order formalities prescribed therein have to be complied with, i.e, there should be a prohibitory order restraining the person from in any way alienating the property sought to be attached. The order of attachment will have to be proclaimed by beat of drum or other customary mode. The order will also have to be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court house. For an order of attachment to become effective these conditions which are laid down have to be complied with.

“In case where a stranger-purchaser is being affected it is necessary for the Court to see whether there was really an effective order which prevented the party to the suit from alienating the property. If the conditions laid down in Or. 21, R. 54 are not followed, then there is no attachment which prevents the party from dealing with his property.”

In AIR (35) 1948 Madras 1915, the Madras High Court has held as follows:

“The fact that an order for attachment has been pending is not sufficient to establish the factum of attachment. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the code have been done. An attachment cannot be said to have been made unless and until the provisions of both the sub-rules of O. 21, R. 54 have been complied with.

“When several properties are sought to be attached in pursuance of an order of attachment, there must be proof of affixure on every one of the properties. An order of attachment affixed only to one cannot be deemed to be effective attachment of the other properties.

“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 1969 (1) Mysore Law Journal 2346, it has been held that where there is non-compliance of the provisions of Rule 54 of Order 21 of the Code of Civil Procedure, there is no valid attachment.

10. The sum and substance of these Rulings is that the order of attachment cannot be a proof that the attachment in fact has been effected. The party relying on the attachment will have to prove that after the order of attachment was made the attachment was effected in compliance with the provisions of law. Order 21 Rule 54 of the Code of Civil Procedure lays down the manner of attachment. The learned Trial Judge has held that there is no similar provisions in the Karnataka Co-operative Societies Act and Rules thereunder for attachment before judgment. The learned Trial Court is wrong in this regard because Rule 38 framed under the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the Act’) lays down the procedure to be followed for attachment and sale of immoveable Page: 1147property. It lays down that no immoveable property shall be sold in execution of a decree unless such property has been previously attached. Rule 47 lays down the mode of making attachment before judgment, it lays down that where attachment of the property is to be made. It shall be made in the manner provided under Rules 36, 37 and 38. Rule 36 relates to the attachment and sale of specific moveable property. Rule 37 is with regard to the attachment of other moveable property, and Rule 38 is with regard to the attachment and sale of immoveable property. The Trial Court ought to have seen as to whether there was in fact any such attachment as required was effected. There is no evidence produced in this case to show that the order of attachment passed on 27.3.1976 was in effect carried out. RW-1 has been examined on behalf of Respondent No. 1. But he admits that he has no personal knowledge about the attachment before judgment. He also admits that there are documents in the office of the Joint Registrar of Co-operative Societies Belgaum to show that the order as per Exhibit R-1 was served on Respondent No. 2. But the documents that are said to be in the office of the Joint Registrar of Co-operative Societies, Belgaum as per the admission of RW-1 are not produced in this case. The said documents would have thrown light on the contention of the respondents that in fact and in effect the attachment before judgment was carried out. The evidence of RW-1 goes to show that he has no personal knowledge about the alleged attachment. Learned Counsel for the appellant submits that there will be presumption under Section 114 of the Indian Evidence Act that the act of effecting attachment before judgment has been carried out in accordance with law. In AIR (35) 1948 Madras 1915 this aspect of the argument has been considered. His Lordship has observed therein as follows:

“It is true that illus. (e) to Section 114, Evidence Act, declares that the judicial and official acts may be presumed to have been regularly performed. But it does not say that it may be presumed that any particular judicial or official act has been performed. No doubt when the only evidence is that a particular judicial or official act has been performed and there is no other evidence on record, it may be presumed that particular judicial or official act was regularly performed. But when the dispute is whether a particular judicial or official act was performed or not, there is Page: 1148nothing in law which enables a Court to presume that act was as a matter of fact performed. Where the question is whether there was any affixure at all of the order of attachment on the property, if there were any reliable evidence as to that fact, it may be presumed, in the absence of evidence to the contrary, that the affixure was properly made. But otherwise it is not permissible to decide the question in dispute entirely on a presumption.

“Moreover, it is not obligatory on the part of the Court to draw a presumption always. The language of Section 114, Evidence Act, itself indicates that the presumption must be drawn in relation to the facts of the particular case. A Court may refuse to draw the presumption to assist plaintiff who comes to Court long after the material evidence necessary to establish his case had ceased to be available and then seeks to rest his case entirely on presumptions. It will be unfair to the other party who would be unable to rebut the presumption which the plaintiff asks the Court to draw because owing to the plaintiff's conduct in bringing the suit after a long delay, the material evidence is no longer available.”

Presumption under Section 114 of the Evidence Act will come of aid to the party if the party proves the fact that the Judicial or official Act has been in effect done or performed. Performance of the act - whether Judicial or official - will have to be proved first and if it is proved, then the presumption arises that the said Act was performed in accordance with law. Without proving the fact of the act having been performed, the party cannot ask the Court to raise that presumption. In this case also Respondent No. 1 has not been examined to prove that the property was actually attached in pursuance of the order of attachment before judgment passed on 27.3.1976 RW-1 has no personal knowledge of attachment of the property. The important documents which are said to be in possession of R-1 which could have thrown light on this aspect of the case are not produced. In view of these circumstances, Respondents cannot rely on the presumption under Section 114 of the Indian Evidence Act, in support of his contention that the attachment was in fact effected in pursuance of the order of attachment before judgment dated 27.3.1976

11. The properties came to be attached in Execution Petition which came to be filed in the year 1979. That Execution Petition came to be closed on 9.7.1982 We have perused that order. There is no mention in the order made in the Execution Petition that the attachment will continue.

12. Learned Counsel for the respondents relied on AIR 1920 Madras 3587 wherein it has been held that the removal of an application for the execution of a decree, for statistical purpose, from the file is not a Judicial termination of the application, that the application was still pending and the Court should be moved to deal with it and to terminate it legally; and that no fresh application was necessary in such a case either under Article 181 or under Article 182 of the Limitation Act (9 of 1908). But in AIR 1970 Mysore 1528, the question whether the attachment still subsists in such a case has been dealt with. In that Ruling it has been held as follows:

“The words “where any property has been attached in execution of a decree” in the rule should not be interpreted too literally. They have to be understood as referring to an attachment in enforcement of which the decree could be executed and in the case of an attachment before judgment it is that attachment which assumes the character of an attachment in execution of a decree and so becomes capable of enforcement in an execution proceeding.

“The rule thus governs not only an attachment made in execution proceedings but also an attachment before judgment. Whether, therefore, it is an attachment before judgment which becomes an attachment in execution or whether it is an attachment made in execution proceeding that attachment ceases to subsist under the rule when an execution application is dismissed for decree holder's default.”

In view of this position of law, it will have to be held that the attachment ceases on the closure of the Execution Petition on 9.7.1982 Learned Counsel for the respondents submitted that any Page: 1150transfer of property made after issue of a Certificate is void against the Co-operative Society. Section 101A of the Act provides that any private transfer or delivery of or encumbrance or charge on, property made or created after the issue of the Certificate of the Registrar or any person authorised by him in this behalf under Section 101 shall be null and void as against the Co-operative society on whose application the said Certificate was issued. Section 99 lays down as to how the charge created on the property under sub-section (1) of Section 32 of the Act has to be enforced. Section 103(3) of the Act lays down that-

“Attachment made under this section shall not affect the rights, subsisting prior to the attachment of the property of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree.”

In view of these provisions namely Section 99 and Section 103(3) it will have to be held that the property referred under Section 101A is the property on which either there should be a charge or encumbrance. Therefor, viewed from any angle, we hold that the Trial Court is wrong in dismissing the petition of the appellant filed under Order 21 Rule 58 of the Code of Civil Procedure.

13. Hence, we proceed to make the following order.

Appeal is allowed with costs.

The order of the Trial Court is set aside; and the petition filed by the appellant under Order 21 Rule 58 of the Code of Civil Procedure is allowed, and the attachment effected on the property is raised.