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The Public Prosecutor Vs. Kayaniyil Kunhamad and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad562; 39Ind.Cas.990
AppellantThe Public Prosecutor
RespondentKayaniyil Kunhamad and ors.
Excerpt:
madras revenue recovery act (ii of 1864), section 8 - distraint of moveable property of defaulter--production of warrant, whether necessary--'produced', meaning of. - .....section 8 of act ii of 1864. this does not require that the demand in writing' (referred to by the joint magistrate as the 'warrant,') should be shown to the defaulter before or at the time of distraint: but merely that it should be 'produced.' this simply means that the distrainer should have it in his possession at the time of distraint, and should show it as his authority to any one interested in the attached property who may be present and disposed to question the legality of his action.2. in the present case there is evidence that the adhigari had the demand in writing in his possession at the time of distraint: and no question has been asked of the prosecution witnesses (so far as respondent's counsel can show) even tending to suggest that any of the respondents asked him to.....
Judgment:

1. The Joint Magistrate has misapprehended the meaning of Section 8 of Act II of 1864. This does not require that the demand in writing' (referred to by the Joint Magistrate as the 'warrant,') should be shown to the defaulter before or at the time of distraint: but merely that it should be 'produced.' This simply means that the distrainer should have it in his possession at the time of distraint, and should show it as his authority to any one interested in the attached property who may be present and disposed to question the legality of his action.

2. In the present case there is evidence that the adhigari had the demand in writing in his possession at the time of distraint: and no question has been asked of the prosecution witnesses (so far as respondent's Counsel can show) even tending to suggest that any of the respondents asked him to produce it.

3. The view we have taken above is in accordance with that of the learned Judges in Marakkar, In re 30 Ind. Cas. 159 ; 29 M.L.J. 60.

4. The convictions of the respondents by the Stationary Sub-Magistrate, Ponnani, has been set aside by the Joint Magistrate solely on the ground above indicated. We must, therefore, set aside his order of acquittal and direct him to restore the appeal to file and dispose of it according to law.


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