Skip to content


S. Kuppuswami Ayyar Vs. Secy. of State - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtChennai
Decided On
Reported inAIR1929Mad383
AppellantS. Kuppuswami Ayyar
RespondentSecy. of State
Cases Referred and Arunachalam Chetty v. Abdul Subhan Sahi A.I.R.
Excerpt:
- - where the courts issue a warrant to the collector such warrant shall be deemed to be a decree within the moaning of the civil procedure coda 1908, and the nearest civil court by which any decree for a like amount could be executed shall, for the purposes of the said code, be deemed to be the court which passed the decree, and all the provisions of that code as to execution of decrees shall apply accordingly......under section 167, clause 8, sea customs act and under section 7, land customs act of 1924, on raju naidu, the person who tried to smuggle the cases of saccharine into british india territory. the order imposing the penalty was served on raju naidu on 15th july 1926. on 20th july 1926, the sub-magistrate of vanur was requisitioned by the customs authorities to issue a warrant for attachment of a motor car which was seized by the customs authorities on 5th may 1926 along with the cases of saccharine. the attachment was effected on 17th september 1926 under section 386, criminal p.c., and it was sold on 28th january 1927. on 19th january 1927, a letter was addressed by the inspector of customs of kandamangalam to the district magistrate of south arcot to take action for realization of.....
Judgment:

Devadoss, J.

1. This is an application to revise the order of the District Munsif Chidambaram dismissing the claim petition of the petitioner. Some cases of saccharine were seized on 5th May 1926, by the Customs authorities at Kanda-mangalam on the British frontier. On 29th June 1926, the Collector of Sea Customs, Madras, imposed a penalty of Rs. 1,000 under Section 167, Clause 8, Sea Customs Act and under Section 7, Land Customs Act of 1924, on Raju Naidu, the person who tried to smuggle the cases of saccharine into British India territory. The order imposing the penalty was served on Raju Naidu on 15th July 1926. On 20th July 1926, the Sub-magistrate of Vanur was requisitioned by the Customs authorities to issue a warrant for attachment of a motor car which was seized by the customs authorities on 5th May 1926 along with the cases of saccharine. The attachment was effected on 17th September 1926 under Section 386, Criminal P.C., and it was sold on 28th January 1927. On 19th January 1927, a letter was addressed by the Inspector of Customs of Kandamangalam to the District Magistrate of South Arcot to take action for realization of the penalty imposed on Raju Naidu under Section 193, Sea Customs Act. Section 193 says:

When an officer of Sea Customs who has adjudged a penalty or increased rate of duty against any person under this Act is unable to realize the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, the name and residence of the said person and the amount of penalty or increased rate of duty unrecovered....

2. On the requisition of the Inspector a warrant of attachment of immovable property of Raju Naidu was issued under Section 386, Clause 8, Criminal P.C. on 16th April 1927. The District Munsif of Chidambaram to whom the application was made directed the attachment and attachment was effected on 17th July 1927. The petitioner filed a claim under Order 21, Rule 58 alleging that the property was his and that he was in possession of it. The District Munsif found that the petitioner's title was a bogus one and that he was not in possession. The petitioner has filed this application against the order.

3. The first point of Mr. T. M. Krishna-swami Ayyar on behalf of the petitioner is that the District Munsif had no jurisdiction to attach the property alleged to belong to Raju Naidu on the ground that there was no proper decree. When this case came on some months ago, I directed the District Munsif to take evidence and record a finding on the question whether Raju Naidu had any goods belonging to him within the jurisdiction of the District Magistrate of South Arcot. He had recorded a finding and the finding is that Raju Naidu was possessed of a motor car within the jurisdiction of the District Magistrate of South Arcot on the date when the District Magistrate was asked to move in the matter under Section 193.

4. The contention on behalf of the Government is that an executing Court cannot go behind the decree and this petition is therefore unsustainable. On the other side it is urged that the Collector of Sea Customs did not notify to the District Magistrate of South Arcot as required by Section 193 and therefore the District Magistrate had no jurisdiction to move in the matter and the issue of the warrant for attachment of immovable property is not a proper warrant and the application to the District Munsif was in execution of an invalid or illegal decree. The question for consideration in this case is whether the Magistrate who issued the warrant had jurisdiction to issue the warrant and whether the District Munsif has jurisdiction to execute the decree. It is found that Raju Naidu was possessed of immovable property within the local limits of the jurisdiction of the District Magistrate of South Arcot on the date when the application was made to him and the action of the District Magistrate in directing his subordinate the Sub-Divisional Magistrate of Chidambaram to issue a warrant cannot therefore be said to be without jurisdiction. The question whether the District Magistrate was properly moved or not is, [ think, not open to question in a claim proceeding under Order 21, Rule 58. The learned Government Pleadar contends that it is not open to the claimant to challenge the validity or legality of a decree before he could establish that he had possession of the property attached [do not think it is a condition precedent in all cases for a claimant to show that he is in possession before he could attack the validity of an attachment. In cases whore there is no decree at all or where the Court which passed the decree had no jurisdiction to pass it, or where the Court which tries to execute the decree has no jurisdiction to execute it, I think it is open to the claimant to put forward the claim on those grounds.

5. But where a decree prima facie is legal and nothing appears on the face of it to be illegal, I do not think anything, wanting in order to give jurisdiction to the Court which passed the decree, cannot be raised before the executing Court. It is unnecessary in this view to consider the cases quoted on both sides: Jalaluddin v. Mt. Maniran A.I.R. 1921 Pat. 311; Venkatapayya v. Venkatachalapathi Rao : AIR1927Mad450 , Sami Mudaliar v. Muthia Chetti A.I.R. 1923 Mad. 212; Perrazu v. Seetharama Chandrarazu A.I.R. 1923 Mad. 114; Zamindar of Ettayapuram v. Chidambaram Chettiar [1920] 43 Mad. 675 and Arunachalam Chetty v. Abdul Subhan Sahi A.I.R. 1926 Mad. 429.

6. It is urged for the petitioner that the procedure obtaining in criminal Court is different from the procedure obtained in a civil Court and, therefore, in execution in a civil Court the question whether all the things necessary in order to give validity to a warrant could be gone into in execution proceedings. I do not think the mere fact that the procedures are different is sufficient to give jurisdiction to the executing Court when it tries summarily a claim petition to go behind what appears on the face of the decree. In this case as I have said a warrant was issued by a Magistrate who had jurisdiction to issue it and the warrant was properly presented under Section 386, Clause 8, Criminal P.C. which says:

Where the Courts issue a warrant to the Collector such warrant shall be deemed to be a decree within the moaning of the Civil Procedure Coda 1908, and the nearest civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly.

7. It follows therefore that the Magistrate has ostensibly jurisdiction to issue a warrant and the warrant issued under Clause 3 becomes the decree of the nearest civil Court. The antecedent defect in the procedure of the Collector granting for argument's sake it is a defect, about which I wish to express no opinion at present as a civil suit is pending, is not a ground which can be investigated in execution proceedings. The civil revision petition fails and is dismissed, but in the circumstances without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //