1. This is an application in revision arising out of a case under Section 353, Penal Code. The two applicants were convicted by the trial Court and were sentenced to undergo three months' rigorous imprisonment and to pay a fine of Rs. 10 each. They appealed to the Sessions Judge and their appeal has been dismissed, except that the sentence of fine has been remitted.
2. It appears that there was a decree against Raghunath, who is one of the applicants in this revision. A warrant of attachment was given to the amin and it was made returnable up to 20th March 1933. This amin has a monthly programme, according to which he works in the Oral tahsil from the 1st to the 13th of each. month and in the Konch tahsil for the remainder of the month. On 1st April, the amin sent a report to the effect that he had not been able to execute this warrant and that he would not have time to go to this particular village in April. On 4th April, the tahsildar wrote on the amin's report : 'Let the amin execute it during his next turn.' His next turn was in the month of May. On 5th May he went to the village to execute this warrant and it has been found by the Courts below that the two applicants stood at the door of Raghunath's house with lathis and intimidated the amin, who thereupon went back and submitted a report.
3. The point which is taken before this Court-and it was also taken before the lower appellate Court-is that the warrant which was sought to be executed on 5th May 1933 was bad in view of the fact that the date on or before which it was to be executed and the date on or before which it was to be returned to the Court was not specified on it. The lower appellate Court is of opinion that the amin's report with the tahsildar's order of 4th April upon it was in all probability attached to the warrant and that in view of the known programme of the amin the intention of the tahsildar must have been to extend the period for execution of the warrant upto 13th May. In Sheikh Nasur v. Emperor (1910) 37 Cal. 122, it was held by a Bench of the Calcutta High Court that a distress warrant issued under the Public Demands Recovery Act which had been extended beyond the original date of return, but which did not bear on the face of it the altered date was not a legal warrant under Order 21, Rule 24(2), Civil P.C. In Guerdial v. Emperor 1933 All. 46, it was Laid down by a Judge of this Court that:
Where the process for execution has a date fixed for its return under Order 21, Rule 24(3), it cannot be executed after that date, and any person whose property is attached after the date fixed for the return of the process may, when charged with the criminal offence under Section 424, I.P.C., say that this property has never been lawfully removed from his possession and that therefore he can commit no offence by taking the property in his own use.
4. The case reported in Sheikh Nasur v. Emperor (1910) 37 Cal. 122, was referred to and followed. In Rash Behary Lal Mandal v. Emperor (1908) 35 Cal. 1076, it was held by a Bench of the Calcutta High Court that a warrant of arrest which had been illegally issued under Section 96, Criminal P.C., could not be treated as valid under Section 98.
5. The provisions of Order 21, Rule 24(3), Civil P.C., are mandatory. It is provided therein that in every process for execution a day shall be specified on or before which it shall be executed; and according to a rule made by this Court a day must also be specified on the process on or before which it is to be returned to the Court. Whether or not the amin's report containing the tahsildar's order of 4th April 1933 was attached to the warrant and whether or not it was the intention of the tahsildar that the time for its execution was to be extended upto 13th May, the fact remains that the warrant did not comply with the mandatory provisions of law and was therefore bad. The point may appear to be a technical one, but there can be no doubt whatever that the warrant was illegal and therefore the applicants committed no offence under Section 353, Penal Code, in resisting its execution by the amin. I accordingly allow this revision and acquit the applicants and set aside their conviction and sentences. Their bail-bonds are hereby cancelled.