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TMI Blog1960 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2 in respect of the suit land measuring 4.01 acres for consideration of Rs. 1000/-. In course of the execution proceeding, the plaintiff abortively put forward his claim based on the said sale. So the plaintiff brought the suit under appeal for declaration of title and recovery of possession. 2. The plaintiff impeached the attachment before judgment as invalid due to certain irregularities. Defendant No. 5, who was the only contesting defendant in the suit and who was the auction purchaser of the attached lands including the suit plot, contested the plaintiff's claim on the grounds that the attachment was valid, and that the sale, subsequent to attachment by defendants 1 and 2 in favour of the plaintiff, was collusive and without consideration. 3. The learned trial court found that the sale in favour of the plaintiff was genuine and for consideration; and that the attachment was invalid and so it passed a decree in favour of the plaintiff. The learned appellate court held that the attachment was invalid; but it was of the view that the sale was collusive and without consideration, and as such no title passed to the plaintiff. So, it dismissed the plaintiff's suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not challenge the passing of consideration. Hence the moot question in the case is whether the attachment was valid and the question of whether consideration passed, did not arise for a decision in either way. 6. Regarding the attachment before judgment the learned appellate Court found that on the basis of an affidavit filed by defendant No. 4 (the then plaintiff in the money suit) the court issued notice under Order 38, Rule 5, C. P. C. and also issued a conditional order of attachment; that the notice was served by the process-server C. W. I on the defendants in the said suit and the land was attached on the spot where a copy of the notice was hung, and there was due proclamation made by beat of drums. There was no evidence about affixture of the copy of the proclamation in the Collector's Office, and this the learned appellate court did not consider to be a serious irregularity vitiating the attachment. The learned appellate Court however observed that other steps that were necessary to be taken under Order 21, Rule 54, C. P. C. were not taken and in that condition, without detailing what were those other steps not taken, it only referred specifically to the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was attached, and that in the absence of any evidence to the contrary, it ought to be presumed (under Section 114 of the Evidence Act) that all necessary formalities were complied with. In Kiernander v. Benimadhab their Lordships held, When there is no positive evidence that the attachment is not effected in accordance with law, the presumption that attaches to official acts as regards their regularity cannot be ignored. As I have already observed, there is no positive evidence in the present case that some of the procedures laid down in order 21, Rule 54 C. P. C. were not followed in the attachment proceeding. So, the question of attachment being invalid on account of non-observance of certain procedural laid down by Order 21, Rule 54 C. P. C. did not arise. (8) Even if there Were certain irregularities in making the attachment, they cannot go to. make the attachment a nullity. In AIR 1945 Nag 97, Dhian Singh v. Secretary of State, their Lordships, after making a thorough discussion on the principles, observed: No universal rule can be laid down whether an enactment shall be considered directory only or obligatory with an implied nullification for disobedience. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection of the person whose property is sought to be attached before judgment. If he did not receive notice required by law and was consequently denied the privilege of staying off the attachment, by the offer of security, the injury would no doubt accrue to him; but the law gives him a remedy by way of appeal under Order 43, Rule 1(q) from such an irregular order to get it set aside. The person affected in this case did not care to take recourse to that remedy and acquiesced in that order.... This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived'..... Jurisdiction is entirely independent of the manner of its exercise. The distinction between the two is that error of judgment is reversible by the appellate court within a certain fixed time and is therefore voidable, whereas the usurpation of power is a mere nullity. The jurisdiction of the court to attach property before judgment is indicated by the words 'if so prescribed' in Section 94, and that con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, inasmuch as it did not amount to any admission on behalf of the plaintiff and it came under no other section of the Evidence Act, to be admissible in evidence, being a statement of a person not examined as a witness and made out of court. But that apart, the learned appellate court depended upon other strong circumstances to discredit the passing of consideration and the learned trial court had not taken those circumstances into consideration. (1) The plaintiff was a very close relative of defendants 1 to 5. (2) The sale deed did not refer to any pressing circumstances, for which defendants 1 and 2 soughs to alienate the suit plot and no oral evidence was adduced on that score. (3) The sale was entered into shortly after the land had been attached. (4) Though the plaintiff purchased the suit land in the beginning part of 1951, it has been admitted by him that he sold away his ancestral properties within one year thereof for Rs. 1600/-as he could not redeem it from mortgage for Rs. 800/-, indicating the financial position of the plaintiff. (5) The plaintiff was a witness for defendants 1 to 3 in Money Suit (which the plaintiff went to the extent of denyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich even if he was unaware previously he would have come to know at the time of the execution of the sale deed, he appears to be prima facie unreliable. 10. It has been observed in AIR 1960 SC 113, Radha Prasad Singh v. Gajadhar Singh. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of appeal is in as good a position as the trial judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified. The learned appeal court, in coming to a different finding on the passing of consideration, appears to have acted within the aforesaid dictum. 11. In the res ..... 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