JUDGMENT

Dunkley, J - The plaintiff-appellant brought a suit on a mortgage by deposit of title deeds of certain grant lands, which had been sold in a Court auction to the respondent who was joined as defendant 2 in the mortgage suit, in execution proceedings Nos. 22 and 23 of the District Court of Akyab. Amongst other defences, the respondents alleged that there was a valid and subsisting attachment in these execution proceedings on the date on which it was alleged by the appellant that the mortgage by deposit of title deeds was effected, and, relying on the provisions of Section 64, Civil P.C., he claimed that the mortgage was void as against him. This point was lield in his favour by the learned Assistant District Judge and the suit as against him was dismissed with costs. It is against this judgment and decree that the present appeal has been filed, and the sole point which has been argued in the appeal is as to whether it was proved that the property in question was under attachment at the time that the mortgage by deposit of title deeds was effected.

2. In so holding that there was a valid attachment of the property at that time the learned Judge referred to a number of execution proceedings, and in these execution proceedings he found two sworn affidavits of the process-server who was alleged to have effected the attachment, and relying on the sworn affidavits and on a presumption which he held to arise under Illus. (e), Section 114, Evidence Act, he concluded that there was a valid and subsisting attachment over the suit property at the time that the mortgage was effected. Now, the attachment of immovable property in execution of a decree is effected under the provisions of Rule 54, Order 21,Civil P.C., and Clause (3) of that rule, which has been added by the Rule Committee of this Court, lays down that

the order of attachment shall take effect...from the date on which the order was duly proclaimed under Sub-rule (2),

and under Sub-rule (2) the order shall be proclaimed at some place on or adjacent to the property to be attached by beat of drum or other customary mode. Consequently in deciding whether, as regards any person dealing with the property, it was under attachment at the time that he dealt with it, the date to be particularly considered is the date on which the order of attachment was proclaimed on or near the property by beat of drum or other customary mode. It has been laid down by their Lordships of the Privy Council in the case of Muthiah Chetti v. Palaniappa Chetti A.I.R. 1928 P.C. 139 (at p. 262 of 55 I.A.) that

no property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.

3. Hence the point which the learned Judge had to consider was whether the order of attachment had been so proclaimed before 28th August 1931, the date on which it was alleged that the mortgage in question was effected. He has held this proved by the affidavits of a process-server made in other execution proceedings, to which the present plaintiff-appellant was not a party, and by a presumption which he drew from Illus. (e), Section 114, Evidence Act.

4. Now, it is quite plain that the affidavits of this process-server are not evidence against the appellant, who was not a party to these proceedings, and the real meaning of Illus. (e), Section 114, Evidence Act, is that if an official act is proved to have been done, it will be presumed to have been regularly done. It does not raise any presumption that an act was done of which there is no evidence and the proof of which is essential to the case raised: see on this point Narendra Lai Khan v. Jogi Hari (1905) 32 Cal. 1107 and Hira Lal v. Jagatpati Sahai A.I.R. 1928 Pat. 600. No presumption arises that the act of proclaiming the order of attachment was ever actually performed, although if proof of its performance had been given a presumption would arise