ORDER
1. This appeal is directed against the judgment of the learned X Assistant Judge, City Civil Court, Madras, in E.A.No.6326 of 1979 in
E.P.No.1791 of 1979 in O.S.No.5709 of 1978. The application before the Court below is the appellant before this Court.
2. The second respondent herein being the plaintiff in O.S.No.5709 of 1978 on the file of the city Civil Court, Madras, obtained a decree against the first respondent, on a promissory note. An interim order of attachment of the suit property was obtained on 19.7.1978 and made absolute on 15.9.1978. A decree was also granted on 16.4.1979. E.P.No.1791 of 1979 was filed by the decree-holder/second respondent for the sale of the property. It is at that juncture the appellant came forward with a claim petition in E.A.No.6326 of 1979 under Order 21, Rule 58 CPC.
3. It was contended by the appellant that he had entered into an agreement with the first respondent (Judgment-Debtor) for the purchase of the property in question for which the first respondent had taken as advance of Rs 1116 on 28.3.1978 and entered into an agreement. On 30.6.1978 he received a further amount of Rs 43, 884 and in part performance of the sale, put the claimant in possession of the property. The claimant had also paid Rs.10,000 to Puraswalkkam Hindu Janopakara Saswatha Nidhi on 30.6.1978. To clear prior debts of the vendor, the claimant also retained in his hand a sum of Rs 27,585 for clearing the prior seven mortgages of the vendor due to Nidhi. Therefore, out of a total sale consideration of Rs 1,12,000, the first respondent had practically received the whole consideration and what was reined with the claimant was Rs 10,000 and another Rs 19,000 for discharging the promissory debts and for payment of Income -Tax dues. Therefore, the entire sale consideration stood adjusted on 30.6.1978, but the registration was delayed only for getting clearance from the Income -Tax Department. The claimant was not aware of the proceedings between the plaintiff the defendant and there was no attachment effected on the suit premises. There was no tom-tom and on one had come to the premises for attaching the property. There was no attachment at any time after 30.6.1978. The claimant came to know of it only on the affixture of the proclamation notice on 14.11.1979. At any rate he had entered into possession of the property in part performance of the agreement and hence protected under Section 53A of the Transfer of Property Act. The attachment therefore was no valid and binding upon the claimant who had acquired title long before the attachment and the claimant was a bona fide purchaser.
4. In the counter filed by the second respondent/decree holder it was contended that the claim petition was not maintainable. It was not signed by the claimant or any authorised person. The suit in O.S.No.5709 of 1978 was filed as summary suit under Order 37, Rule 1 CPC. I.A.No.11765 of 1978 was filed praying for attachment of the property. On 19.7.1978 the property was attached through the bailiff of the court and the same was made absolute on 15.8.1978. Therefore, on 16.5.1979 a decree was obtained after the first respondent’s petition to leave to defend was dismissed. Therefore, the reason
of attachment in the suit, a charge has been created and the claimant has no locus standi to object to the sale of the property brought through the process of the Court. The alleged agreement of the sale has pleaded by the claimant was denied and the alleged payment of the advance was also denied. The various payments as alleged by the claimant were fictitious payments and were cooked up for the purpose of defeating the rights of the respondents. No possession of the property was also delivered to the claimant prior to the date of the attachment. All the said allegations have been made with a view to resist the sale by Court auction. The contention that the claimant had paid the entire sale consideration and that the same stood adjusted on 30.6.1978 itself was also denied. It was further stated that the sale even if true, has been brought about by the first respondent in collusion with the petitioner’s benami long after attachment with no intention to transfer any right, title or interest in the property. As regards the attachment, it was done bona fide and had been effected according to law and the procedure laid down under Order 38 CPC. The Court bailiff, accompanied by the agent of the respondent, went to the premises and effected attachment after reading out the contents of the Order and after the tom tom, the order of attachment was also duly affixed on the premises. Therefore, in short, the respondent denied the sale agreement as well as the delivery of possession as alleged by the claimant. There was no collusion between the respondent and the judgment-debtor and on the other hand, there was collusion only between the judgment-debtor and the claimant.
5. On a consideration of the said allegations an the evidence, the learned Judge rejected the contention of the appellant that the property was purchased by him even before the attachment, considering the fact that the interim attachment was ordered on 19.7.1978 and made absolute on 15.9.1978. The sale deed had been executed only on 19.1.1979 and registered on 12.2.1979. The claim that possession of the property was handed over to the first respondent even prior to the order of attachment was also disbelieved. It was further held that the appellant had not established the sale being supported by proper consideration. The objections raised as against the legality of the order of attachment were also over-ruled. With the result, the claim petition was dismissed and hence the present appeal.
6. Mr.Ashok Menon, learned counsel for the appellant, had submitted very elaborate arguments both on facts and law which are as follows:-
(a) The order of attachment was invalid due to non-compliance of statutory requirements.
(b) The reasons given by the trail court for disbelieving the agreement for sale, Ex.A.1 and taking over possession of the property on 30.6.1978 are unsustainable.
(c) the trial court had overlooked the recitals in the sale deed and other exhibits filed by the appellant in the context of the consideration for the purchase.
(d) The agreement for sale would be a charge over the property under section 100 of Transfer of Property Act and the attachment by the court cannot over-ride the agreement for sale.
7. Except for the issue as regards the validity of the order of attachment, all other points which arise for consideration in this appeal are issues which depend purely upon the appreciation of evidence. Even though this court is entitled to reappraise the evidence, we have only to see whether the trial court which had the advantage of watching the demand out of the witnesses, had properly considered the relevant places of evidence. A perusal of the judgment of the trial court shows that all points raised by the appellant had been duly examined and discussed in a detailed manner. However, considering that the learned counsel for the appellant had advanced very elaborate submissions on factual issues also, I have independently considered the evidence and I do not find any reason to interfere with the findings arrived at by the trial court, as discussed below.
8. The following particulars of dates are relevant for appreciation of the issues:-
(i) Suit filed and the order of interim attachment obtained on 15.7.1978.
(ii) Attachment effected on 19.7.1978
(iii) Attachment made absolute on 15.9.1978.
(iv) The date of degree 16.4.1979.
(v) Agreement of sale in favour of the appellant 20.4.1978
(vi) Possession alleged to be taken by the first respondent 30.6.1978
(vii) Sale deed executed on 19.1.1979
(Viii) Sale deed registered on 12.2.1979
On the question of validity of the order of attachment Mr.Ashok Menon, learned counsel for the appellant, contends that there was no proper compliance of Order 38, Rule 11-B CPC. which requires that the order of attachment should be communicated to the Registering Officer within whose jurisdiction the property was situated. This requirement has been prescribed by a Madras Amendment to Rule 38 which came into effect only on 29.6.1987. The attachment in the present case being long prior to the said amendment, reliance placed on the said provision cannot be sustained.
10. It is further stated that the suit summons against the defendant had not been taken to the correct address and that therefore, the attachment cannot be sustained. According to learned counsel for the appellant; residential address of the defendant namely, the the summons should have been taken to the property to be attached. I am unable to appreciate the said contention also. The address for service could be anything which has to be only a true and correct address and to effect proper service of notice. The address of the
defendant had been given as old No.38, New No.9, Bunder Street, Madras-1, where the defendant was carrying on his business. It is not disputed that notice in the suit had also been served on the defendant in the said address. It is also relevant to note that even in the promissory note itself dated 22.1.1976 being the subject matter of the suit, the address of the defendant had been given as “residing at No.38, Bunder Street, Madras-1”. In the affidavit filed by the first respondent also it is only the said address which has been disclosed by the judgment-debtor himself. Therefore, the objection in the said context is without any basis.
11. A further objection which was taken by the appellant is that the process of attachment effected was not in conformity with the legal requirement. Mr.Ashok Menon is not able to pin point any specific illegality much less, irregularity in the proceedings, except to state that there are no proper endorsements in Ex.B.3 warrant of attachment which averment is without any basis. A perusal of Ex.B.3 discloses that the warrant had been issued by the Central Nazir on 17.7.1978 and is duly endorsed by the plaintiff’s agent on 19.7.1978 to the effect that on that date at about 11.00 a.m. he accompanied the bailiff to attach the property and after due publicity by tom tom the bailiff read over the contents of the warrant to the public and also the inmates of the attached properties. The person who had beaten the tom tom had also signed in acknowledgment of having received his remuneration. On 20.7.1978 the bailiff had returned the warrant with the following remarks.
” On 19.7.1978 at about 11.50 A.M. I went with the plaintiff’s agent to execute the warrant of attachment of immovable property mentioned in the schedule. After due publicity by beat if tom tom I read over the contents of the warrant to the public an inmates an attached the property. I affixed each copy of the attachment order at the suit premises Corporation, Collectors Office and Court notice board as per order of this Hon’ble Court T.T.C of Re. 1 has been paid to the tom tom beater and obtained his acknowledgment above.”
12. On the same day, the Central Nazir had also endorsed the warrant. Therefore, there is absolutely no irregularity attached to the process of attachment and it is needless to emphasis that all official’s acts are presumed to be done in accordance with law unless the contrary was proved. The claimant does not know about the attachment proceedings and PWs 3 and 4 are the brother-in-law and son of the appellant. P.W.2 who is a power of Attorney holder though he would say in one portion of his chief-examination that there was no tom tom on 19.7.1978, in the cross-examination, he would admit that he was not personally aware of the tom tom. He would also state that it was only on 14.11.1979 he was informed by the appellant’s son about the affixture of the proclamation. Therefore, it is obvious that as regards the attachment proceedings, the appellant is not only unable to dislodge the statutory presumption, but also not speaking the truth as regards the tom tom and the attachment proceedings.
13. Having regard to the fact that the sale in favour of the appellant is much later than the attachment, quiet understandably much reliance is placed by the appellant on the alleged sale agreement and handing over of possession of the property to the appellant which is said to have taken place on 30.6.1978, namely, prior to the date of attachment on 19.7.1978. In fact, the truth or otherwise of the alleged agreement for sale is the most crucial issue relevant for decision in this appeal. In this context, apart from the detailed analysis of the evidence by the learned trial judge, I would also enlist herein the reasons for rejecting the alleged sale agreement and having over of possession.
(A) There is absolutely no mention of the sale agreement in the sale deed. When details of the prior title and series of payments of consideration have been given elaborately, the absence of the mention of agreement is very significant.
(B) No encumbrance certificate either prior to the sale agreement or after the sale agreement and prior to the execution of the sale deed had been filed by the appellant, which is sufficient to disclose lack of bona fides on the part of the appellant.
(C) Though in the agreement which is dated 20.4.1978, it is stated that sum of Rs 1116 was received as part of the advance, the purchaser having issued a cheque dated 28.3.1978, absolutely no evidence is let in to prove the same. Not even the name of the Bank is disclosed. PW1 would state that it was paid by simon, his brother-in-law (PW2) from and out of Simon’s own account. This is not supported even by oral evidence of Simon.
(D) In the counter filed I.A.No.11765 of 1978, the judgment debtor has stated that he had sold the property as early as in May, 1978, whereas the sale agreement is dated 20.4.1978 and the sale deed is executed on 19.1.1979 and presented for registration on 12.2.1979. The Statement in the counter clearly renders that the sale agreement is nothing but a lie and an after thought. The month is left blank and written in ink and there is also no mention of the date.
(E) None of the attesting witnesses has been examined even though one of them was admittedly alive. When the issue regarding the truth of the agreement is most vital to the claim petition, the non-examination of even one of the attesting witnesses is bound to be viewed as fatal to the case of the appellant.
(f) The payments alleged to have been made for the due consideration of the sale deed are very artificial and unconveniencing. There is no dispute over the fact that whatever monies which were paid in discharge of the debts were compiled with by the vendor himself, but those amounts are cited as made towards all the total sale consideration of Rs.1,12,000. Even among those items a sum of Rs.27,585 is said to be retained by the purchaser for discharging seven mortgages in favour of the Nidhi. This could only mean that even before the satisfaction of full consideration the vendor had hurriedly executed the sale deed which is very artificial
and unlikely. The further claim in the claim petition that the entire sale consideration stood adjusted on 30.6.1978 itself is also rendered false.
(G) Possession is alleged to have been handed over on 30.6.1978 on which date even according to the respondent only a sum of Rs.55,000 had been paid. It is most unlikely that any prudent vendor would do so when the property is worth not less than Rs.1,12,000. Admittedly, as pointed out above on the date of the sale deed the amount of Rs.27,585 is alleged to be retained by the purchaser for discharging the mortgage loans.
(H) In the sale agreement consisting of four pages, there is no signature of the vendor at page No.3.
(I) In page Nos.1 and 4 where the amount of consideration and the further advance to be paid as a condition precedent for handing over possession of the property, there are obvious corrections, erasures and writing in ink in the place of typed words. There are no initials for such corrections which are material alterations. The purchaser/P.W.I states that he does not know who made the corrections.
(J) No document or letter showing the handing over of possession on 30.6.1978 has been filed.
(K) The alleged execution of power of attorney in favour of Simon by the purchaser for entering into the alleged execution of sale agreement or taking over of possession of the property is unsubstantiated.
(L) Admittedly on the date of the execution of the sale agreement, the appellant was not in India and stamp papers had been purchased in the name of Simon. There is no dispute that as on that date (20.4.1978) there was no power of attorney in favour of Simon. Ex.A.16 power of attorney filed by the appellant has been executed only on 29.12.1979 to pursue the legal proceedings. There is no mention of any power of attorney either in the sale agreement or in the sale deed.
(M) The transactions cited for the alleged payment of consideration to the purchaser at different stages reflect series of improbabilities and are highly artificial. On 30.6.1978 Simon is said to have handed over a cheque for Rs.50,000 to the vendor and is said to have received back a sum of Rs.6116. No explanation is forthcoming for such a conduct.
(N) The said amount of Rs.50,000 was paid to the purchaser only on 10.7.1978 (Ex.A.8). This would completely belie receipt of entire consideration and handing over of possession of the property on 30.6.1978.
(O) There is absolutely no evidence of handing over of possession of the property. On the date of sale agreement possession was not handed over and hence the sale agreement is irrelevant. There is also no receipt or letter of handing over or taking over possession of the property on 30.6.1978. In the said circumstances, a reference in the sale deed dated 19.1.1979 regarding taking over of possession of 30.6.1978 is totally insufficient to seek the benefit of Section 53A of the Transfer of Property Act, more so in the circumstances of the case as mentioned above which totally belief the claim of the respondent.
(P) Though an oral agreement of sale itself is enforceable and the written agreement may not also require the signature of the purchaser, the Court is bound to view the absence of the signature of the purchaser also as one of the reasons which would weigh against the truth of the agreement, in a case as the present one where the execution is seriously disputed.
14. As against all the aforementioned solid reasons and grounds which totally belie the execution of Ex.A.1 agreement and the factum of handing over possession of the property on 30.6.1978, Mr.Ashok Menon does refer to certain pieces of evidences which ex facie smacks of artificiality and improbability. Ex.A.7, application for Income-tax clearance certificate is sent by the vendor on 2.2.1979 and does not help the case of the respondents in any manner. In fact such a belated application for certificate of Income-tax clearance is also contrary with the statement in the claim petition to the effect that the entire sale consideration stood adjusted on 30.6.1978 itself and the registration was delayed only for getting clearance from the Income-tax Department. From Ex.A. 7 it turns out that the very application had been made much later than the alleged execution of the sale deed itself. Ex.A.8, letter from the Grindlays Bank stating that the amount of Rs.50,000 was paid to the vendor on 10.7.1978 as stated earlier would only go against the case of the, respondents of handing over possession on 30.6.1978 itself. Neither Ex.A.10, Passport nor Exs.A.13 to A.15, cancelling the mortgage deeds have any relevance to the truth of execution of Ex.A.1 or handing over of possession on 30.6.1978. Ex.A.12 lorry receipt alleged to have been issued by the owner of the lorry at Attur, Salem District, to show that the lorry had transported the house-hold articles to the suit property, is on the face of it a product of over enthusiastic attempt to create evidence. The text of the letter, mentions about “goods belonging to Srimathi Padma Thiagarajan”. It is not known as to how the lorry owner knew about the ownership of the house-hold articles. The signature of the lorry owner is taken on a Revenue stamp for having received a sum of Rs.500/- as transport charges. The text of the receipt is in different hand writing and ink. Ex.A.3 invitation dated 1.7.1978 for the house-warming ceremony is no less a cooked up one to use the mildest expression. The text of the invitation reads,
The said recital is not only artificial to be mentioned in an invitation but is also contrary to the facts. Even according to the respondents: full consideration was paid and sale deed was executed only, subsequently: on 19.1.1979. It is also not a letter addressed to, any individual or marked through any invitee. No independent witness has been examined to speak about the house-warming ceremony. Both Exs.A.3 and A.12 disclose the level to which, the, appellant
is prepared to go to prove the alleged taking over possession of the property since the appellant, is aware that his entire case depends on the proof of the alleged fact. All that was required to be done was to have examined one of the attesting witnesses who was admittedly alive and which the appellant had failed to do. So also the alleged letter written to the Revenue Officer of the Corporation dated 30.6.1978 is not supported by any acknowledgment. Ex.A.5 dated 11.5.1978 is the property tax demand notice mentioning the name of the appellant. It cannot have any validity having regard to the well accepted principle that even mutation of Municipal records cannot be conclusive evidence of title to the property. Ex.A.5 is only a tax demand notice and not even a mutation of the Municipal Register. More over, the notice is dated 11.9.1978 whereas the attachment had been effected on 19.7.1978 itself.
15. Therefore, there are absolutely no materials on the side of the appellant which is worth mentioning so as to out- weigh the several grounds stated above which completely belie the truth of Ex.A.I and the alleged handing over of possession on 30.6.1978.
16. Mr.Ashok Menon cited several judgments in support of the following propositions of law.
(a) An agreement for sale is sufficient to create charge under Section 100 of the Transfer of Property Act.
(b) An agreement for sale need not be signed by the purchaser so as to claim the benefits under Sections 53A of the Transfer of Property Act.
(c) In the case of an attachment of property in execution of the decree, the sale could be effected only subject to such agreement. Attachment made after the agreement to sale, will not affect prior agreement for sale.
(d) Section 64 C.P.C. will not affect the rights acquired prior to the attach-ment.
17. Mr.M.S.Krishnan, appearing for the respondents, does not seriously challenge the aforementioned propositions of law. I am also inclined to hold that it is not necessary to consider the said issues when once it is held that the alleged agreement for sale is not true or valid and that there was no evidence, of handing over of possession of the property on 30.6.1978. Therefore in such circumstances, none of the aforementioned issues would arise for consideration and it is for the said reason it is not necessary to list the rulings referred to by Mr.Ashok Menon.
18. Mr.Ashok Menon also relied on the following rulings in support of his contention that the process of attachment could not be said to be valid unless there was proper compliance of statutory requirements and also the evidence to prove-that the legal requirements have been properly complied with, (i) Sita Nath Pati v. Sarada Prasanna Das, A.I.R. 1937 Cal.375 (ii) Sadhu Prasad v. Satnarain. Sah, A.I.R. 1939 Pat. 81; (iii) Noor Mohamed v.
Pechi Ammal, A.I.R. 1939 Mad. 793; (iv) Murugappa Chettiar v. Thirumalai Nadar, 1947( II) MLJ 310.
19. Reliance is also, placed on the following judgments to contend that the presumption arising under Section 114 of the Evidence Act regarding the proof of official acts would apply-only where the attachment had been properly complied with and not otherwise.
(i) Hiralal v. Jagatpati Sahai, A.I.R.1928 Pat. 600; (ii) Sita.Nath Pati v. Sarada Prasanna Das, A.I.R. 1937 Cal. 375
20. Per contra, Mr.Krishnan relied on the judgment of Srinivasan, J. as he then was, in G.Ramasami v. Kuruva Boyan and two others, 1991 (1) L.W. 244 in support of his contention that in order to reject the official records as the bailiff’s endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars, the Courts shall not direct an enquiry as to whether there was actual delivery. The presumption under Section 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply. On the strength of the above judgment Mr.Krishnan would contend that there is no allegation of fraud or collusion on the part of Court officials and the party seeking to enforce the order of attachment.
21. In this context. Mr.Ashok Menon has not been able to specifically point out any illegality in the order of attachment apart from merely contending that the attachment had not been effected in accordance with law. In the case cited by him, specific allegations were made and contended that such non-compliance would vitiate the attachment proceedings. For instance, in the case reported in A.I.R.I 939 Patna, 81, cited above, the order of attachment did not contain the particulars of the property. I have already referred to Ex.B.3, warrant of attachment which deals with the process of attachment having been properly executed. R.W.I has also stated that the Amin had retired from service and he was unable to secure his present address. He has also spoken about the manner of execution of the warrant. Therefore, when once, a duly executed official document has been filed in court, there is no basis on which the official document could be ignored. In the claim: petition, all that is stated is that there was no attachment, no tom tom and no one had come to the premises. There is absolutely no allegation of any fraud or collusion as against the Amin or against the Court official.
22. Therefore, I do not find any grounds to interfere with the detailed reasoning given by the trial Court in rejecting the claim petition.
23. In the result, the appeal is dismissed. No costs.