JUDGMENT
S.J. Mukhopadhya, J.
1. The appellants-petitioners have challenged the judgment and order dated 14th of February, 1984 passed by learned 1st Additional district Judge, Gopalganj in Misc. Appeal No. 52/84 and 35/87. By the impugned judgment the appellate Court affirmed the order dated 12th of May, 1984 passed by the learned Munsif, Gopalganj in Misc. Case No. 12/82.
2. The plaintiff-opposite party No. 1 filed Money Suit No. 211 of 1974 against one Swami Nath Rai, defendant-Opposite Party No. 2 and his donees, i.e. defendants-Opposite Party Nos. 3 to 5. Thereafter the plaintiff-opposite party No. 1 filed an application under Order XXXVIII, Rule 5 of the Code of Civil Procedure for attachment of the property of the defendants. An order was passed by the trial Court on 19th of December, 1974 for attachment of the property, which was confirmed.
3. According to the appellants-petitioners, such order dated 19th of December, 1974 was so passed without complying the provision and procedure of Sub-rule (1) of Rule 5 under Order XXXVIII of the C.P.C. and subsequently auction sale was made on 25th of May, 1981.
4. The appellants-petitioners claimed that Swami Nath Rai, the defendant-opposite party No. 2 had already executed a registered deed of Zarpeshagi on 15th July, 1971 in favour of appellant-petitioner No. 2 and put him in possession as mortgages. Subsequently by a registered deed of gift dated 30th of July, 1974 said defendant-opposite party No. 2 gifted his properties in favour of Opposite Party Nos. 3 to 5 and put them in possession. On 22nd of August, 1974 Baleshwar Pandey, defendant-opposite party No. 3, executed a Zarpeshagi deed in favour of the appellants-petitioner Nos. 1 and 2. Later by a sale deed dated 14th of March, 1975 defendant-opposite party No. 2 sold the disputed plot No. 317 to the appellants-petitioners, and by another sale deed dated 14th of March, 1975 sold Plot No. 351 to the appellants-petitioners. It is claimed that the appellants-petitioners are coming in possession of the disputed Plot Nos. 317 and 351 as vendees.
5. The appellants-petitioners claimed that they were not parties in the suit and the order of attachment was passed on 19th of December, 1974 without complying with the provisions of Order XXXVIII, Rule 5 (1) of the C.P.C., without any notice to the defendants of the suit and/or to these petitioners. The auction sale was also made on 25th of May, 1981 without any notice to these appellants-petitioners. Further, according to the appellants-petitioners, they came to know of such order of attachment and auction sale on 8th of February, 1992 from their first cousin and then they asked their lawyer to inspect the records. Thereafter within three days of such inspection the Misc. Case No. 12/82 was filed on 11th of February, 1982, under Order XXI, Rule 19 of C.P.C. for setting aside the auction sale of the land, which was auction sold in pursuance of Execution Case No. 17/79. The learned Munsif, Gopalganj by order dated 12th of May, 1984 rejected the said Misc. Case No. 12/82. The appellants-petitioners then preferred the Misc. Appeal No. 52/84 and 35/87, which has been rejected by the learned 1st Additional District Judge, Gopalganj by the impugned judgment dated 14th of February, 1994. Before the Court below a specific stand was taken by the appellants-petitioners that the auction sale was made on 25th of May, 1981 by playing fraud as 3 bighas 9 kathas of lands were sold at a consideration of Rs. 2,234.33 paise. Further it was pleaded that in terms with Order XXXVIII, Rule 5 (iv) of the C.P.C, the attachment was to be treated to be void, the provisions of Sub-rule (1) of the said Rule 5 having not been followed by the Court below, including the publication for attachment.
6. It may be evident form the impugned appellate judgment dated 14th of February, 1994 that the appellate Court while held that the execution after attachment up to the stage of auction sale cannot fall within the mischief of Sub-rule (iv) to Rule 5 under Order XXXVIII, such finding was given on the ground that Sub-rule (iv) aforesaid was substituted by the Act 104 of 1976 with effect from 1st of February, 1977 and the order of attachment was passed earlier to the said date, on 19th of December, 1974. The appellate Court also rejected the claim of the appellants on the ground that Misc. Case No. 12/82 was barred by limitation.
7. The counsel appearing on behalf of the appellants-petitioners placed reliance on different decisions of the Supreme Court, including the case of Anant Gopal Sheorey v. The State of Bombay reported on , the case of Kishangopal v. Smt. Narmadabai reported in AIR 1978 SC page 236 and Full Bench decision of this Court in the case of Gobardhan Lai Seneja v. Binod Kumar Sinha and Ors. reported in 1991 (2) PLJR page 783. It was submitted that Sub-rule (iv) of Rule 5 of C.P.C. being one of the procedural rule is to be given effect from retrospective effect and is also applicable with respect to the order of attachment passed on 19th of December, 1974. It was further submitted that as the statement of A.W. 1 was available before the appellate Court, besides the statement of the appellants-petitioners relating to date of knowledge, the appellate Court could not have discarded the same without any cogent reason.
It is to be taken into note that the statement of A.W. 1 was discarded by the appellate Court solely on the ground the he is the first cousin of the appellants-petitioners and is highly interested.
8. So far as the first question as raised by the counsel for the appellants- petitioners is concerned, according to me, the decisions of Supreme Court and of this Court referred above are not applicable in the present case. Sub-rule (1) to Rule 5 under Order XXXVIII of the C.P.C. is a procedural law, which was existing as on 19th of December, 1974. Such being the position, it was mandatory on the part of the trial Court to follow the said procedure in the matter of attachment. Sub-rule (iv) of Rule 5 under Order XXXVIII of the C.P.C. though inserted with effect from 1st February, 1977 by Act 104 of 1974, but after the said date whenever the matter is to be looked into by any competent Court of law and the validity of attachment is to be tested, the Court is bound to hold the attachment as void, if the procedure laid down under Order XXXVIII, Rule 5 (iv) of the C.P.C. was not followed. In this background, I find that the appellate Court misread the provisions of law and came to a wrong finding that the said Sub-rule (iv) was not applicable in the attachment order, which was passed on 19th of December, 1974, particularly when the validity of the attachment was looked into much after the insertion of Sub-rule (iv) aforesaid.
9. So far as the delay in filing the Misc. case No. 12/82 is concerned, it appears that the same was filed after delay of about five months. However, the appellants-petitioners took a clear stand that their date of knowledge was 8th of February, 1992, for which they led evidence and A.W. 1 made specific statement to that effect. Though such statement was on the record and other records were available with the appellate Court, without going through inspection report, and in absence of any contrary evidence the appellate Court should not have discarded the statement of A.W. 1. It is evident from the impugned judgment that no cogent reason has been given by the appellate Court to discard the statement of A.W. 1 and without discussion of the other evidences, including the statement of the petitioners, the finding has been recorded by the appellate Court. The appellate Court having misdirected itself in appreciating the evidence and having failed to appreciate the provision of law this Court has no other option but to set aside the impugned appellate order.
Accordingly, the impugned order and judgment dated 14th February/1994 passed in Misc. Appeal No. 52/84 and 35/87 is set aside. The matter is remitted to the appellate Court. The appellate court will decide the matter, in accordance with law, after having the parties.
10. The civil revision application is allowed with aforementioned observation and direction. There will be no order to costs.
