Jaganmohan Reddy, J.
1. This case has been referred to a Bench by one of us as involving an important question of law relating to the attachment in execution of maintenance order passed under Section 488 Cr. P. C. in favour of 1st defendant against her husband, the 2nd defendant. In execution of the decree the cattle and a cart were attached. The appellant who is the father of the 2nd defendant, filed an .objection petition stating that the cattle and the cart were his self-acquired property and were not liable to attachment and sale under a decree obtained against his son, the 2nd defendant. This objection petition was dismissed. The plaintiff filed the present suit for a declaration that the cattle and the cart were not liable to be attached.
2. The 1st defendant resisted the claim of the appellant on the ground that the property in question belonged to the 2nd defendant and so it was rightly attached. The 2nd defendant remained ex parte.
3. Necessary issues were framed. Evidence was led by the parties. On the evidence, the trial court dismissed the suit holding that the cattle and the cart were part of the ancestral and joint family property of the appellant and defendant and that it was not the self-acquired property of the appellant. On appeal, the appellate court also took the same view and dismissed the appeal. The plaintiff now has come up in second appeal.
4. The contention of the learned Counsel for the appellant is that when it is held that the attached property was the ancestral and joint family property, the same could not be attached, as coparcenary property does not belong to any one member of the coparcenary, but belongs to the joint family. He next contended that Clause (3) of Section 488 has prescribed the procedure for enforcement of the order and the procedure prescribed is the same as that provided for the recovery of fines under Section 386(1) Cr. P. C. and that inasmuch as under this provision only the moveable property of the offender has to be attached and as the property does not belong exclusively to the offender, this property could not be attached.
In support of this contention, the learned Counsel placed reliance on Rajendra Prasad v. Emperor, AIR 1932 Pat 292 (SB), Chandrika Singh v. State of Bihar, AIR 1954 Pat 25S, Sohna Singh v. Kartar Kaur, AIR 1931 Lah 532, Bansraj Das v. Secy of State, AIR 1939 All. 373, Shrawan v. Emperor, AIR 1933 Nag 248, and Manmathanath v. Emperor, AIR 1933 Cal 401.
5. Mr. Vasant Rao, learned Counsel for the respondent while admitting that Clause 3 of Section 488 prescribed a procedure for the enforcement of the fine and that procedure is laid down in Section 386(1), contends that that is only a procedure and that has nothing to do with the liability of the coparcener on the co-parcenary property to pay the maintenance. He further contended that when the co-parcenary property is liable for the payment of the maintenance amount, to say that the share in the co-parcenary property could not be attached and sold would not be a valid contention.
6. The cases which have been cited by the learned Counsel for the appellant, no doubt, deal with recovery of fines; but they are not cases where an order made under Section 488 was sought to be executed. But when Sub-clause (3) of Section 488 definitely prescribes a mode of execution of an order passed under that section to be the same as that under Section 386, the contention of the learned counsel for the respondent that the cases cited by the appellant's learned advocate cannot be applicable, is in our view, untenable. In strict theory the coparcenary property does not belong to any one member of the coparcenary but belongs to the joint family. A coparcener has only a right, title and interest in such property and the right, title and interest are capable of being sold. Such a sale, however, is not capable of passing a full ownership of the property to the purchaser so as to entitle him to immediate exclusive possession.
The law in this respect is well settled viz., that a purchaser of an undivided share in a specific part of joint family property cannot get possession except by partition. We may in this connection refer to Nanjaya Mudali v. Shanmuga Mudali, AIR 1914 Mad 440, Peramanayakam v. Shivaraman, : AIR1952Mad419 (FB), Hanmandas v. Valabadas, AIR 1918 Bom 101, and Kamtaprasad v. Madho Rao, AIR 1929 Nag 60. It may also be stated that a purchaser gets an equitable right to demand partition of the joint family properly and he is not entitled to actual possession until the partition is effected. But the contention is that in attaching the cattle the interest of the others, who are not liable for the claim, is also attached and consequently such an attachment could not validly be made under Section 386(1).
In AIR 1932 Pat 292 a Special Bench of the Patna High Court consisting of Courtney-Terrell, C. J., Fazl Ali and Agarwala, JJ. after referring to the principles laid down by the Privy council as long ago as 1871 in Syud Tuffazal Hossein Khan v. Raghunath Prasad, 14 Moo Ind App 40 and Queen Empress v. Sita Nath Mitra ILR 20 Cal. 478 held that there was no method by which the undivided share of an individual in moveable property can be seized in the literal physical sense without at the same time seizing the undivided shares of other persons and as the statute does not authorize the seizure of such other shares the undivided share of an individual such as a member of a joint Hindu family cannot be seized under Section 386(1)(a).
Similarly, AIR 1933 Cal 401 followed Queen Empress v. Sita Nath Mitra, ILR 20 Cal. 478 in holding that the Cr. P. C. does not entitle the Court to order the seizure and sale of moveable property in which the convicted person has only an undivided share, without the consent of those jointly interested with him. AIR 1933 Nag. 248 was also a case under Section 386(1)(a) where undivided share of a member of a joint family in a pair of bullocks was held to be not capable of being seized and delivered to the purchaser; as such the case cannot be dealt with under the above section. Niyogi A.C.J. held that the capacity to give exclusive possession to the purchaser is the test of the applicability of Section 386(1)(a). In this case, the Special Bench decision of the Patna High Court was relied upon. A single Bench of Allahabad High Court in AIR 1939 All. 373 also took a similar view.
It is unnecessary for us to examine any further authorities for the proposition that an undivided interest in moveable properties could not be attached, seized aud sold under Section 386(1)(a) of Cr. P. C. The learned Advocate for the respondent however contends that the provisions of the C. P. C. viz., Order 21, Ruie 47 should be held to apply to the execution of the orders made under Section 488 which is implicit in the provisions prescribed under Section 386. No doubt in a Single Bench decision of the Madras High Court in Narasanna v. Emperor, ILR 55 Mad 1041 : (AIR 1932 Mad 538), Pakenham-Walsh, J. appears to have taken a view which lends support to that contention.
There as the learned Judge had put it, they were not concerned with Section 386(1)(b) but were dealing with a case under Section 386(1)(a) and in so dealing, he held that under Section 386 of the Code of Criminal Procedure the right, title and interest of a convicted person in joint family properties can be attached for the recovery of the fine imposed on him, that the proper mode of attachment in such a case was not by way of seizure, that the Crown had no right to anything more in joint moveable property than the delinquent himself had, and it cannot deprive the co-owners, by seizing property, of their right of possession in it and that the correct course was that laid down in Rule 47 of Order XXI; of the Code of Civil Procedure and that if necessary, either a receiver can be appointed for the delinquent's share or a prohibitory order can be issued against him and that his interest in the property can then be brought to sale.
In arriving at this conclusion the learned Judge applied the analogy of the provisions of Section 88, Cr. P. C. which prescribes a detailed procedure for attachment of property of the absconder who has been notified under Section 87. In his view, as the procedure prescribed under Section 88 is modelled on the provisions for deciding claims to attached property made by third parties under the C. P. C., it was quite proper to look to the C. P. C. for assistance in this matter. With due deference, we are unable to accept this view as being warranted by the provisions of the Cr. P. C. The very fact that the legislature in great detail provided for the manner of attachment of moveablo and immovea-ble properties under Section 88 Cr. P. C. would show that it was conscious of the inability of the criminal courts constituted under the Code of Criminal Procedure Code.
Under Section 386 itself, the legislature made a difference in enacting two different modes of attachment. Under Section 386(1)(a), it is provided for the issue of a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender. Clause (b) of the above section provides for the issue of a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. If a warrant is issued to the Collector under Section 386(1)(b), then the Collector is deemed to be a decree-holder within the meaning of the Code of Civil Procedure, 1908, as inrovided for under Sub-section (3) of Section 386 and he is further empowered to execute the decree in the nearest court. Sub-section (3) of Section 386 is in the following terms :
'Where the Court issues a warrant to the Collector under Sub-section (1), Clause (b) such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning oi the Code of Civil Procedure, 1908 (5 of 1908) and the nearest Civil Court by which any decree tor the like amount could be executed shall, for the purposes of the said Code, be deemed to bo the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly.'
This provision also clearly demonstrates what the intention of the legislature is, viz., where the provisions of the C. P. C. were intended to be made applicable, the legislature specifically said so or enacted analogous provisions as it did in Section 88 Cr. P. C. Venkatasubba Rao, J. in Kollivenkatara-tnam v. Collector, Kristna, AIR 1936 Mad 560 held that the standing crops belonging to the joint family cannot be attached by actual seizure for the recovery of fine from a member of a Hindu Coparcenary as the share of the offender in the crops was unascertained. In that case the learned Judge was concerned with the method prescribed in Clause (b) of Sub-section (1) of Section 386.
He says that the court imposing the fine may under that clause issue a warrant to the Collector of the District authorising him to realise the amount by execution either against the moveable or immov-cable porperty or both of the defaulter and that the section shows that such warrant shall be deemed to he a decree, the Collector to be the decree-holder and the nearest civil court the court which passed the decree and that finally the section enacts that all the provisions of the Civil Procedure Code as to execution of decrees shall apply to the proceedings. In our view, it is clear that where an order of fine or maintenance is sought to be executed under Section 386, the court must make up its mind as to whether it is directing warrant under Section 386(1)(a) or 386(1)(b) and no doubt it can adopt both the procedures.
But if it gives a warrant of attachment under Section 386(1)(a) that warrant could only be executed against the property of the person who has been fined or against whom a maintenance order has been made and that could be done by seizure and sale of the moveable property. But if as in this case it seeks to attach a share in the moveable or im moveable property, it can only do so by an order to the Collector, so that the provisions of the C. P. C. could be made applicable in execution of that order which will be deemed to be a decree under Sub-section 3.
7. The contention of the learned Advocate for tile respondent is that at least if the attached property could not he seized and sold there is no reason why the attachment could not be retained under Order 21, Rule 47, but that argument postulates an application of the provisions of the C. V. C. to a warrant issued under Section 386(1)(a).
8. In the result, this appeal is allowed, thejudgment and decree of both the courts below areset asido and the plaintiffs suit is decreed. Butinasmuch as this is a family matter, between thehusband and the wife where the respondent is amaintenance-holder, we think, having regard tothe circumstances of the case, parties should beartheir costs of all the courts.