1. This case was heard by me on August 6, 1934, when I directed that the amin of the Civil Court should be examined and his evidence tested carefully by the execution record of case No. 67 of 1933 of the Court of Judge, Small Causes, at Pilibhit. The amin was examined and cross-examined and his evidence has been certified to this Court along with a note by the Judge.
2. The facts of the case might be staled briefly once more. On March 24, 1933, the amin of the Civil Court went to attach certain crops belonging to Bhaggi in execution of a decree obtained by Jagmohan Lai. It is said that the crops were attached and entrusted to custodian. Some days afterwards, that is, on April 2, 1933, Beni, the applicant before me, removed the crops in spite of a remonstrance by the sapurdar. Upon theses facts Beni was convicted) of an offence under Section 329, Indian Penal Cede, and sentenced to pay a fine of Rs. 50.
3. The contention of the applicant before me as well as before the Courts below was that the attachment was illegal and consequently there could be no theft if the applicant removed the crops; Reliance was placed on the case of Ram Sakhal Singh v. Emperor : AIR1931All142 in which Niamat-ull-ah, J., held that where attachment of movable crops is made merely by beat of drum and the procedure prescribed by Order XXI, Rule 44, Civil Procedure Code, is not followed, the produce cannot be deemed to have passed from the possession of the judgment-debtor into the possession of the Court, and) if therefore, the crops are removed with the consent of the judgment-debtor the person removing the crops cannot be said to be guilty of theft. The argument of the applicant is that the procedure prescribed by Order XXI, Rule 44, Civil Procedure Code was not followed in the present case. As there was some controversy on this point when the case was heard by me on the last occasion and as the evidence of the amin was not full, I considered it desirable have the amin examined afresh. He now says that he received one warrant of attachment from the Court and he prepared two copies of the warrant himself and affixed one such copy on the land where the crop was grown and another copy on the outer door of the residential house of the judgment-debtor. He admits that the copies of the warrant o attachment were not sent to him by the Court but that he himself prepared the copies of the warrants. The learned Judge before wham the amin was examined has appended a note, from which it would appear that, he felt some difficulty in accepting the evidence of the amin. I have similar difficulty myself, but even if it be assumed that the amin is speaking the truth, I agree with the applicant's Counsel that the formalities prescribed by Order XXI, Rule 44, Civil Procedure Code, have not been complied with. There was no warrant for the preparation of the copies by the amin. Under Order XXI, Rule 24, Civil Procedure Code, every process issued by a Court for the execution of the decree shall bear date the day on which it is issueed and shall be signed by the Judge or such Officer as the Court may appoint in this behalf and shall be sealed with the seal of the Court and delivered to the proper officer to be executed. The copies that were prepared by the amin might have borne date the day on which it was issued but they were not signed by the Judge and they were not sealed with the seal of the Court. The amins evidence makes this clear. He says that the warrants were not sent to him by the Court and that he himself prepared the copies of the warrants. It is, therefore, obvious that the copies wore signed by the amin and did not bear the seal of the Court. As pointed out by me in my former order their Lordships of the Privy Council have said that no property can be declared to be attached unless first the order of attachment has been issued and secondly in execution of that order the other things prescribed by the rules in the Code have been done. The Code prescribes under Order XXI, Rule 24 for the processes to be signed by the Judge or such Officer as the Court may appoint in this behalf and for the processes to be sealed with the seal of the Court, It is doubtful if the amin can be deemed to be an officer appointed by the Court in this behalf and had the power to sign the process. In Ram Dayal v. Mahtab Singh 7 A. 506 their Lordships of the Privy Council intimated that the judgment of the Calcutta High Court was correct. In that case Oldfield, J., had observed that:
the fact that the order of attachment and notices of sale were not issued under the signature of the Judge but of the Munsarim as though emanating from him constituted serious illegalities of procedure. Orders so issued could properly speaking have no legal effect since Section 222 of Act VIII of 1859 requires that the warrants for execution shall be signed by the Judge and the Munsari had no power to sign them having regard to his duties as declared in Section 24 of Act III of 1873 Civil Courts Act).
4. Straight, J., concurred with this view and held that the language of Section 222 of Act VIII of 1859 is plain and positive and it was impossible to hold that the order directing attachment was not a warrant within the meaning of that section. It is true that their Lordships were discussing the illegality contained in the warrant of attachment and the notices of sale issued by the Court itself and not the illegality in the warrants that had to be attached on the land and on the residential house, but that to my mind makes no difference, because all these warrants are processes that have to be issued by the Court. Section 222 of Act VIII of 1859 is the same as Order XXI, Rule 44 in several material particulars. In Khadir Bux v. Emperor 49 Ind. Cas. 171 : 3 P.L.J. 636 : 29 Cr.L.J. 139, their Lordships of the Patna High Court held that the injunction contained in Order XXI Rule 24 about the sealing of the warrant, with the seal of the Court was mandatory and unless it was complied with, the attachment was illegal. It was also held that the attachment being illegal resistance to such attachment could not constitute an offence. In Badri Gope v. Emperor 93 Ind. Cas. 146 : A.I.R. 1916 Pat. 237 : 7 P.L.T. 30 : 5 Pat. 216 : 27 Cr.L.J. 418, it was held that if the writ of attachment did not bear the seal of the Court as required by Order XXI, Rule 24, Civil Procedure Code, the defect was not a mere technical one, because the presence of the seal of the Court giving authority to the writ is an obviously imperative safeguard and if the writ was invalid and resistance was made at the time of the attachment the person resisting would be; free from liability as long as no excessive force was used. I have, therefore, come to the conclusion that the attachment was illegal and that, therefore, the property did not pass from the possession of the judgment-debtor into the possession of the Court, and it is not the case for the prosecution that the removal of the crops was without the consent of the judgment-debtor.
5. Indeed In this connection I have to notice another argument advanced by learned Counsel for the applicant. It is said that the applicant had purchased the crops on February 23, 1933, by means of a sale-deed about a month before the alleged attachment on March, 24, 1933. Whether the sale-deed was merely a paper transaction or a valid transfer of title is a different question but there can be no doubt that the judgment-debtor was a consenting party to the removal of the crops by the applicant. In this connection, however, the contention of the applicant is that the Courts below have not gone into the question of title which they had to decide and reliance is placed on the case of Ghasi v. Emperor : AIR1930All329 . Sen, J. while construing Section 424, Indian Penal Code observed that the crucial question was whether the alleged removal of property was dishonest or fraudulent and, therefore, if persons claiming title to a property under attachment in execution of a decree on another remove the same, the matter whether such property belonged to the accused or not has to be determined by the Criminal Court before deciding upon conviction. The same crucial question for determination arises under 319, Indian Penal Code, as well. There can be no doubt that the Courts below have not decided on the question of the validity of the sale-deed produced by the applicant but have contented themselves by saying that the applicant knew of the attachment when he removed the crops and he should have desisted from such removal the moment he came to know of the attachment, and if he felt aggrieved, he should have gone to the executing Court to file objections there. The District Magistrate undoubtedly is somewhat suspicious about the sale-deed but he too has not recorded any definite finding on the point inasmuch as he was of the opinion that the matter was not of any importance because if the accused had really got these crops he should have filed objections in the Civil Court in the course of the execution proceedings and had no right to take the law into his own hands. This really misses the crucial point, which is that if a person in assertion of a bona fide title accruing before the attachment removes the crops he cannot be said to be acting dishonestly or fraudulently. If, therefore, I had not agreed with the first contention of the applicant, I would have felt it necessary to ask for a definite finding on this question of title. As it is, I am of the opinion that the attachment was illegal and the accused cannot, therefore, be said to have committed any offence.
6. For the reasons given above I allow this application, set aside the conviction and the sentence and direct that the fine, if paid, be refunded.