The main legal point established in the judgment is the requirement for actual proof of attachment and compliance with formalities under Order XXI R.54(1) and (2) of the Civil Procedure Code, and the application of the presumption under S.114 of the Evidence Act.

1. The question raised here relates to attachment of an item of immovable

property. It is said that copy of the order of attachment was not affixed in the

concerned Municipal Office as required by Order XXI R.54(2) of the Civil

Procedure Code. The matter arose in execution and this way: On resistance offered

by the respondents who are purchasers of the property from the judgment-debtor,

after the decree, which was one for money, the appellant who purchased the

property from the decree-holder-auction purchaser applied for delivery of

possession of it after removal of obstruction. Resistance offered was mainly on

the ground that the court-sale was invalid because there was no proper

attachment. The attachment was one made before judgment but made absolute on the

date of the decree. The Subordinate Judge, Trichur, before whom the objection

regarding attachment was raised overruled it but it found favour with the

Additional District Judge, Trichur, who heard the appeal from the order of the

Subordinate Judge.

2. Report of the Amin was that the attachment as ordered was actually effected

and in the face of that the Subordinate Judge was of the opinion that it had to

be presumed that all formalities connected with the attachment were complied

with. The Additional District Judge who after bearing the appeal called for

records on the trial side from the Subordinate Judge's court to find out whether

there was really affixture of a copy of the order of attachment in the Municipal

Office, received from that court four records including the Fair Copy Register

and was informed that the other relevant records could not till then be found.

The Fair Copy Register contained entry that copies of the attachment order were

sent to the Munsiff and Tahsildar, Trichur, but there was no similar entry in it

that the same was sent to the Municipality. It was from that sole circumstance

that the Additional District Judge inferred that there was no affixture of copy

of the attachment-order in the Municipal Office.

3. Now, from the mere omission of entry in a Register about despatch of

communication to the Municipal Office it cannot be inferred that no communication

was actually sent to the Municipal Office. Further the Additional District Judge

was not right in entering a rinding on that matter when all the relevant records

connected therewith had not been received by him from the Subordinate Judge's

Court and without affording opportunity to the appellant's counsel to offer his

explanation even in respect of the records received from the Subordinate Judge's

Court.

4. The making of attachment is by issue of an order prohibiting the judgment

debtor from transferring or charging the property as provided in Order XXI

R.54(1) C.P.C. Sub-rule (2) of that rule directs proclamation of that order in

the property attached or at a place adjacent to it and affixture of copies of the

order on the property attached and in the court house. The sub-rule further

directs affixture of copies of the order in the concerned Village or Taluk Office

and in the concerned Municipal or Panchayat Office. From these provisions it is

clear that the formalities referred to in sub-rule (2) have also to be satisfied

before an attachment can be considered to be complete.

5. When a dispute arises as to whether the formalities regarding attachment were

complied with presumption under S.114 of the Evidence Act regarding regularity of

performance of judicial and official acts can be drawn. But then it can be done

only if attachment is actually proved by the Amin's report or otherwise.

6. Mohammad Akbar Khan v. Mian Musharaf Shoh AIR. 1934 P.C. 217 is a decision of

the Privy Council directly bearing on this matter. In that case the fact that

attachment was actually made was proved but there was no direct evidence that a

copy of the order of attachment was affixed in the Collector's Office. It was

held that in the absence of evidence to the contrary it had to be presumed on the

basis o