Back
1934 Supreme(SC) 38
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD MACMILLAN, AND SIR JOHN WALLIS.
MOHAMMAD AKBAR KHAN - Appellant
Versus
MUSHARAF SHAH (DEFENDANTS) - Respondents
On appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : July. 20. 1934.
Solicitors for appellant:Stanley Johnson & Allen. Solicitors for respondent No. 1: T. L. Wilson & Co.
Suits to determine third-party rights in attached property must be brought in a competent civil court under Order XXI, Rule 63 CPC. Additionally, official formalities of attachment are presumed completed under Section 114 of the Indian Evidence Act unless evidence proves otherwise.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXI, Rules 54(2), 58 to 63 - Punjab Tenancy Act - Sections 77 and 88 - Indian Evidence Act, 1872 - Section 114 - Suit to determine rights in attached property - Where the rights of a third party intervene, the proper remedy is a suit under Order XXI, Rule 63 of the Code of Civil Procedure in a court of competent jurisdiction - A Revenue Court with strictly limited jurisdiction is not the appropriate forum for such a determination.
(B) Indian Evidence Act, 1872 - Section 114 - Attachment of land - In the absence of evidence to the contrary, it must be presumed that all necessary formalities, including the affixing of the order of attachment in the Collector's office as required by Order XXI, Rule 54(2) of the Code of Civil Procedure, were duly complied with.
(C) Effect of Attachment - The interest of a purchaser who acquires property after a prohibitory order is subordinated to the rights of the attaching party - Such attachment is, however, subject to the rights of a prior transferee of a mortgage.
Facts of the case:
The appellant leased land to a debtor who hypothecated specific land to secure rent. Following rent arrears, the appellant obtained money decrees in a Revenue Court and subsequently obtained prohibitory orders and attachments against the hypothecated and other lands. A third party claimed interest in the land through a prior mortgage and a subsequent purchase of the debtor's interest. The appellant filed a suit in civil court for declarations that the attachments were valid and that the subsequent transfers were ineffectual.
Findings of Court:
The civil court had jurisdiction to determine the rights between the appellant and the third party. The attachments were held to be valid as the necessary formalities are presumed to have been completed. The interest of the subsequent purchaser is subordinated to the attachment, while the attachment is subject to the rights of the prior mortgagee.
Issues: Whether the Revenue Court or the Civil Court was the proper forum to determine the rights of a third party regarding attached property and whether the absence of direct evidence of the attachment order being affixed in the Collector's office invalidated the attachment.
Ratio Decidendi: The court held that under Order XXI, Rule 63 of the Code of Civil Procedure, a separate suit in a court of competent jurisdiction is the correct remedy to determine rights in attached property. Furthermore, under Section 114 of the Indian Evidence Act, there is a presumption that official formalities were complied with unless evidence to the contrary is provided.
Result: Appeal allowed and the order of the District Judge restored.
Legal Category Hierarchy
-
practice and procedure
-
civil procedure
-
execution of decrees
- attachment of property
-
execution of decrees
-
civil procedure
-
property law
-
land law
- mortgages and hypothecation
- punjab alienation of land act
-
land law
-
evidence law
- presumptions
Judgement
Consolidated Appeals (No. 93 of 1932) by special leave from two decrees of the Court of the Judicial Commissioner, North-West Frontier Province (December 2, 1930), reversing a decree of the District Judge, Peshawar (February 27, 1930).
The appellant instituted a suit against the respondents in the District Court of Peshawar for declarations that lands of respondent No. 2 had been attached and were still under attachment for the satisfaction of decrees for rent obtained by the appellant in the Revenue Court, and that certain transactions of sale or mortgage effected by respondent No. 2 in favour of respondent No. 1 were ineffectual against his, the appellants, rights. Respondent No. 2 had obtained an order of the Revenue Court setting aside the attachments, and the Revenue Commissioner had dismissed an appeal on the ground that no appeal lay.
The facts appear from the judgment of the Judicial Committee.
The Court of the Judicial Commissioner, reversing a decree of the District Judge, dismissed the suit. The learned Judicial Commissioners said that the object of the suit was nothing more nor less than to get the orders of the executing Court set aside. In their opinion the Revenue Commissioner had been wrong in holding that no appeal lay to him from the order. They doubted whether Order xxi., r. 63, applied, but considered that if a separate suit lay the proper forum was the Revenue Court, not the Civil Court. Further, they held that it was not shown that copies of the orders for attachment had been affixed in the Collectors office in compliance with that Order xxi., r. 54 (2.), and that was fatal to the validity of the attachments.
1934. June 28, 29. Dunne K.C. and Wllach for the appellant.
De Gruyther K.C. and Parikh for respondent No. 1.
July 20. The judgment of their Lordships was delivered by
LORD TOMLIN. This is an appeal from the Court of the Judicial Commissioner, North-West Frontier Province, which reversed a decree of the District Judge of Peshawar.
At the outset their Lordships desire to call attention to the unsatisfactory way in which the record in this case has been prepared. Many documents to which reference has necessarily been made have not been printed, and considerable difficulty has been encountered in ascertaining the facts and the nature of the points to be considered. In future, their Lordships will have to consider whether they should hear a case presented in so slovenly a manner until it has been put into proper shape. The time of their Lordships Board should not be occupied in unravelling matters which it is the duty of the parties to present in an intelligible form.
The facts of the case, as their Lordships understand them, are as next narrated.
In December, 1914, the appellant being then about to proceed on war service, granted a number of leases of his lands to various persons. Among these leases was one contained in a registered deed dated December 15, 1914, whereby a lease of certain lands was granted to the second respondent, who is hereafter called the debtor, for five years, at a yearly rent. By clause 12 of the lease the debtor hypothecated certain lands of his own, including 250 kanals in the area of Maho Dheri to secure the rent, and it was provided that the debtor should have no power to sell or mortgage the hypothecated land during the period of the lease, and that the appellant could recover his lease money by sale or mortgage of such land.
The rent fell into arrear, and on January 25, 1918, the appellant obtained against the debtor, in the Revenue Court before the Assistant Collector, a decree for Rs. 1484-8-0, together with costs and future interest.
In April, 1932, after the decision of the Judicial Commissioner, which is the subject of the present appeal, the appellant secured an alteration in the decree of January 25, 1918, by incorporating therein some additional words which had appeared in the antecedent judgment, to the effect that the property hypothecated by the lease s
