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Kollivenkataratnam Vs. the Collector of Kistna and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1936Mad560; 163Ind.Cas.480; (1936)70MLJ717
AppellantKollivenkataratnam
RespondentThe Collector of Kistna and ors.
Excerpt:
- - 1. the lower court's order is clearly wrong and must be set aside. but whether that provision expressly applies or not, the father was perfectly entitled to say that the property attached being the entire crops which were physically seized, his rights were infringed......nearest civil court the court which passed the decree. finally, the section enacts that all the provisions of the civil procedure code as to execution of decrees shall apply to the proceeding.2. the offender in this case is a member of a hindu coparcenary of which the petitioner, his father is the manager. the attachment was of the standing crops and it was effected by seizure. the father has preferred a claim urging first, that his son had no right to the property at all and secondly, even granting that he had a right, that the attachment by seizure contravenes the provision of order 21, rule 47 of the code. that provision runs as follows:where the property to be attached consists of the share or interest of the judgment-debtor in moveable property belonging to him and another as.....
Judgment:

Venkatasubba Rao, J.

1. The lower Court's order is clearly wrong and must be set aside. Section 386 of the Criminal Procedure Code prescribes two modes of recovering a fine imposed upon an offender. We are now concerned with the second method the one referred to in Clause (b) of that section. 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 immoveable property or both of the defaulter. The section goes on to say -that such warrant shall be deemed to be a decree, the Collector to be the decree-holder and the nearest Civil Court the Court which passed the decree. Finally, the section enacts that all the provisions of the Civil Procedure Code as to execution of decrees shall apply to the proceeding.

2. The offender in this case is a member of a Hindu coparcenary of which the petitioner, his father is the manager. The attachment was of the standing crops and it was effected by seizure. The father has preferred a claim urging first, that his son had no right to the property at all and secondly, even granting that he had a right, that the attachment by seizure contravenes the provision of Order 21, Rule 47 of the Code. That provision runs as follows:

Where the property to be attached consists of the share or interest of the judgment-debtor in moveable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

3. This rule provides that the attachment shall be effected by the issue of a prohibitory order for the obvious reason that a mere share or interest is incapable of actual seizure. Even assuming that the property attached was owned by the joint family, the defaulter's share was unascertained and it is only in virtue of the rule of Hindu Law as laid down by the Courts, that his undivided interest would pass to an alienee from' Government, who in his turn for working out his rights would be obliged to institute a suit for partition.

4. It is unnecessary to decide whether Order 21. Rule 47, which in turn refers to co-owners, applies to the members of a Hindu co-parcenary. But whether that provision expressly applies or not, the father was perfectly entitled to say that the property attached being the entire crops which were physically seized, his rights were infringed.

5. The lower Court therefore ought to have allowed the claim petition. It refers to the circumstances that the crops were handed over to the petitioner on his executing a security bond and on this ground, which has no bearing on the question to be decided, has refused him relief.

6. The lower Court's order is reversed and the Civil Revision Petition is allowed with costs both here and in the lower Court.

C.R.P. 1388 of 1934.

7. The judgment, which I have just delivered in Civil Revision Petition 1387 of 1934, governs this Civil Revision Petition also, which is accordingly allowed with costs both here and in the lower Court.


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