1. This reference has been made by the Judge of the Court of Small Causes in Poona in the course of execution proceedings wherein the judgment-creditor caused to be attached three casks of country-liquor which were in the judgment-debtor's shop. These casks were removed to the Court-house and it was presumably the intention of the judgment-creditor to have them sold.
2. The Collector at Poona intervened, his intervention taking the form of letters addressed to the Judge. He stated that the liquor should not have been removed without a transport or permit from his office, that it could not be sold without a permit under the Abkari Act, and that the purchaser could not remove it without a permit which the Collector stated he did not intend to give, and he asked that attachment might be removed.
3. This has caused the Judge of the Court of Small Causes to feel doubt as to the answers to the following two questions which he has referred to this Court:-
1st. Whether country liquor is exempt from attachment and sale in execution of a money decree passed by a Civil Court, and
2ndly. If not, whether the Collector's permission is necessary for its attachment and sale.
3. The answer to the first question must, in my opinion, be in the negative. Nothing has been pointed out to us in the law from which we can infer that country liquor is exempt from attachment and sale in execution. The liquor had admittedly been purchased and paid for by the judgment-debtor; it was his property. There was no doubt it could be sold by him though he had to deal with it in accordance with the terms of his license and the provisions of the Abkari Act. It is, therefore, clear that it is saleable property, and is covered by the provisions of the first part of Section 266 of the Code of Civil Procedure.
4. But the answer to the second question is different. The Collector's permission is necessary for the sale as appears from Section 16 of the Bombay Abkari Act. But it is not necessary to the attachment so far as the attachment can be made without removal. By the Collector's permission being necessary I mean that the sale without his permission would apparently subject the seller to prosecution under the Abkari Act. Whether the seller would be able to make a good defence to such a prosecution is a matter on which it is unnecessary, even were it possible, to express any opinion now.
5. It was argued that the reference is bad because it arises out of the action taken by a third person not a party to the suit. But this argument is of no weight in this case. The judge has to determine whether he can rightly order the liquor to be sold and is in doubt on the point, therefore he is entitled under Section 617 Civil Procedure Code to make the reference.
6. The only other point which it is necessary to notice is the form in which the Collector's intervention has been made. In my opinion it was altogether irregular and contrary to the manner in which proceedings in Courts of justice should be conducted. If the Collector thought it necessary to bring to the notice of the Judge an objection to the sale of this country liquor he should have done so in the ordinary manner by an application made in open Court, so that it could be dealt with by the Judge judicially.