THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No. 1736 of 2003 JUDGMENT: 1. This Civil Miscellaneous Appeal is preferred aggrieved by the order dated 16.07.2001 in I.A. No.466 of 1999 in I.A. No.412 of 1999 in O.S. No.45 of 1999 on the file of the Senior Civil Judge, Khammam, whereunder and whereby petition filed by the first respondent herein/claim petitioner under Order XXXVIII Rule 8 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) was partly allowed holding that the first respondent herein is the owner of the attached vehicle and he is entitled to withdraw the sale proceeds of the vehicle which were in deposite in the court. 2. The learned counsel for the appellant contended that the Hire Purchase Agreement dated 18.2.1998 is a collusive one entered into between the respondents 1 and 2 herein and therefore the trial Court ought not have ordered for return of the sale proceeds of the vehicle in favour of the first respondent; that in the first instance, the vehicle was attached by way of attachment before judgment by the court directing the second respondent to furnish security within 48 hours, and as he failed to furnish the security, the lorry was attached and the same was seized on 3.6.1999 and kept in the premises of Rajyalaxmi Rice Mill; therefore, when the property is attached, the question of transferring right over the lorry in favour of the first respondent by virtue of Ex.A6 does not arise, and hence, he prays to set aside the impugned order. 3. None appears for the respondents. 4. Under Order XXXVIII Rule 8 C.P.C., where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of decree for the payment of money. The procedure for adjudication of claim is the same as in Order XXI Rule 58 C.P.C. Rule 58 of Order XXI C.P.C. relates to adjudication of claims and objections to attachment of property in execution proceedings on the ground that such property is not liable to attachment. 5. The factual matrix is not in dispute. The appellant herein is the plaintiff, and the respondents 2 to 5 herein are defendants, in the suit, and first respondent herein is the claim petitioner. The plaintiff filed the Original Suit No. 45 of 1999 against the respondents on 25.5.1999 basing on a chit transaction, and made an interlocutory application No.171 of 1999 therein on 31.5.1999 under Order XXXVIII Rule 5 CPC for attachment of the bus bearing No TN 72/6566 before judgment. The same was ordered directing the defendants to furnish security within 48 hours. As the defendants failed to furnish the security, the bailiff of the Court seized the vehicle on 3.6.1999. As per Ex.A6-endorsement, the fresh registration certificate was issued in favour of the first respondent on 14.6.1999. 6. It is contended by the learned counsel for the appellant that the transfer of the vehicle after attachment is illegal and so the first respondent/plaintiff is entitled for sale proceeds of the vehicle which was sold in public auction. According to the learned counsel for the appellant, the hire purchase agreement under Ex.A1 is fraudulently brought into existence so as to defeat the legitimate claim of the appellant herein and therefore Ex.A1 cannot be relied upon. The contention of the learned counsel for the appellant can be accepted if there is no hire purchase agreement dated 18.2.1998 or that it is shown to be brought into existence collusively to defeat the rights of the appellant. Further, if there is any evidence to show that Ex.A1 is collusive one, certainly the contention of the learned counsel for the appellant can be accepted and the sale proceeds of the lorry can be ordered to be returned to the appellant. But, in view of the fact that the lorry was attached through process of court before judgment, the first respondent herein will be having first charge over the movable property. 7. As seen from Ex.A2, which is attested copy of registration particulars of the vehicle in question, it would clearly reveal that there is an endorsement bearing No.C.No.1015/A1/91, dated 18.3.1998 in Certificate Book made by the registering authority, Khammam tot he effect that, ‘HPA held with M/s. Giridhari Auto Finance Pvt. Ltd., H.No.11-4-3, Nehru Nagar, Khammam near CPI Office, Khammam w.e.f. 18.3.1998’. According to the learned counsel for the appellant, such endorsement was made on 1.6.1999 after the order of attachment before judgment, cannot be accepted in view of the recital in Ex.A2 which would clearly go to show that the Hire Purchase was made on 18.3.1998. Because its attested copy was given on 1.6.1999, the counsel for the appellant stated that it is an ante-dated endorsement. Ex.A2 has not been denied or disputed. Under Section 114 (e) of the Indian Evidence Act, 1872, the Court may presume that judicial and official acts have been regularly performed unless rebutted. When the claim petitioner established that entries were made in public document, the legal presumption would be that official acts must have been duly performed. It is not the case of the appellant that entry in Ex.A2 is not done in discharge of official duties or that it is fabricated. There is no denial of Ex.A2 document. There is no contra evidence adduced by the appellant to disprove the endorsement on Ex.A2 with regard to the Hire Purchase Agreement with the first respondent on 18.3.1998 and so, it can be acted upon. If that is the case, Hire Purchase Agreement was made long prior to filing of the suit itself. Therefore, the Hire Purchaser will be having first charge over the property in view of the fact that the vehicle is under Hire Purchase agreement that too long prior to attachment of the vehicle by the Court. When the recitals in Ex.A2 would go to show that the Hire Purchase Agreement was made long prior to filing of the suit itself, Hire Purchaser will be having a right to appropriate the sale proceeds of the lorry towards instalments as the second respondent failed to pay the instalments as undertaken under Ex.A1. Therefore, the trial Court rightly passed the order and there are no grounds to interfere with the impugned order. 8. The Civil Miscellaneous Appeal is devoid of merit and is, accordingly, dismissed. No costs. _______________ K.C. BHANU, J 09.11.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 1736 of 2003 Date: 09.11.2010 Between: M/s. Usha Sri Agro Agencies (Chit Funds) …Appellant And M/s,. Giridhar Auto Finance (P) Ltd., Khammam & others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 1736 of 2003 09.11.2010