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Musai Lal Vs. Kashi Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.893
AppellantMusai Lal
RespondentKashi Prasad and ors.
Excerpt:
penal code (act xlv of 1860), section 422--fraudulent transfer. - - they certainly do not constitute an offence under section 422 and the learned counsel for the applicant has failed to show what other offence they can possibly constitute......parties came to a compromise on the 24th of february 1911 and according to that compromise, the accused persons gave security for the debt. the security given was a house situate in patna. the litigation took place in mirzapur. a deed was executed by the accused persons, under which they hypothecated the house in question, and was duly registered. a year afterwards they sold the property to another person. on these facts, a complaint was filed by the present applicant charging the accused persons with an offence under section 422, indian penal code. this was done at mirzapur. an objection was taken that the mirzapur court had no jurisdiction to entertain the complaint and both the courts below have sustained that objection. the complainant has come on revision, but it seems to me that.....
Judgment:

Tudball, J.

1. The applicant in the present case obtained a decree against the accused persons ex parte. The case was re-heard and the parties came to a compromise on the 24th of February 1911 and according to that compromise, the accused persons gave security for the debt. The security given was a house situate in Patna. The litigation took place in Mirzapur. A deed was executed by the accused persons, under which they hypothecated the house in question, and was duly registered. A year afterwards they sold the property to another person. On these facts, a complaint was filed by the present applicant charging the accused persons with an offence under Section 422, Indian Penal Code. This was done at Mirzapur. An objection was taken that the Mirzapur Court had no jurisdiction to entertain the complaint and both the Courts below have sustained that objection. The complainant has come on revision, but it seems to me that it is unnecessary to decide the question of jurisdiction for two reasons, first, that the act of which complaint was made does not constitute an offence under Section 422, Indian Penal Code. In no sense, under the language used in that section, can the accused person be said to have prevented any debt or demand due to himself, from being made available for the payment of his debts. In the next place, the property having been hypothecated under a registered document, the accused persons had every right to transfer what interest was left to them in the property to any body who was willing to purchase. The mere transfer of his interest by a mortgagor cannot be said to be fraudulent or dishonest merely because he has, as a matter of fact, previously mortgaged his property. The facts on which the complaint is made are to be found in the statement of the complainant recorded by the Magistrate on the 16th of May 1912 and on those facts, it cannot be said that the accused persons are guilty of any offence. They certainly do not constitute an offence under Section 422 and the learned Counsel for the applicant has failed to show what other offence they can possibly constitute. For these reasons, I see no reason whatever for interfering in revision. The application is rejected.


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