The judgment established the principle that the statements of fact recorded in the judgment of the court are conclusive and cannot be contradicted by affidavit or other evidence.

P.A. Mohammed, J.

This appeal is directed against the order in I. A. No. 3689/97 in O.P. (Indigent) No. 89/97 on the file of the Principal Sub Judge, Kottayam. The petitioner-plaintiff before Court below is the appellant before us. He filed the suit as an indigent person for the recovery of a sum of Rs. 1,99,224. 40 with interest from the defendants 2 and 3. He has also filed the above application under 0.38 R.5 of CPC seeking an order of attachment before judgment. The Court below after hearing both parties lifted the conditional attachment already made on furnishing security for 50% of the Plaint amount by the 4th defendant within 15 days from the date of the order. The plaintiff being aggrieved by the said order filed the present appeal.

2. When this appeal came up for hearing today, Sri. Mathew John, Advocate took notice on behalf of the respondents-defendants. He submitted that the impugned order had been passed on the basis of a concession made by the counsel appearing for the plaintiffs. His case is that this appeal is not maintainable in as much as the impugned order had been passed on concession made by the plaintiffs. On the other hand, Advocate M.R. Parameswaran who appeared for the appellant disputed this position and placed reliance on the affidavit filed along with this appeal by the Advocate who appeared for the appellant before the Court below.

3. In view of the above rival contentions, it is essential for us to adjudicate this question. In this context, let us now examine what the court below observed in the impugned order as to the alleged concession. It said:

"At the time when the matter was came up for hearing the learned counsel for the defendants was frank enough to concede that the 4th defendant is ready and willing to deposit 1/2 of the plaint amount as security and prayed for lifting the order of attachment. The learned counsel for the plaintiff also agreed with the submission on the side of the defendants".

The above statement, according to the counsel for the appellant is untrue and incorrect. He brings the following statements contained in the affidavit filed by the counsel to our notice.

"6) In the order dated 11.8.98 pronounced by the Hon'ble Court it is stated that the petitioner's counsel conceded that the attachment effected on the defendant's property may be lifted on furnish ing security by them for on behalf of the amount claimed by the petitioner.

7) I have not made any such admission either directly or impliedly in the submissions made by me before the Hon'ble Court. I have only submitted that there are no grounds or circumstances for lifting the attachment effected and that it may be kept as such till the disposal of the case".

4. Under S.114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) to the said section provides, the court may presume that the judicial acts have been regularly performed. When this being the presumption as to judicial acts we are bound to accept the statement of the judges Jr recorded in their judgments as to what transpired in Court. Where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. In such circumstances, the remedy of the party aggrieved is by way of review. Chinnappa Reddy, J. (as the learned judge then was) in State of Maharashtra v. Ramdas Shrinivas Nayak (AIR 1982 SC 1249) held thus:

'The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one