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Toolseeram Bera Vs. Golam Abed - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal861
AppellantToolseeram Bera
RespondentGolam Abed
Excerpt:
absconding of accused - attachment by magistrate--execution of decree--sale in execution of decree--sale by magistrate--code of criminal procedure (act x of 1872), sections 172 and 173. - .....the expiration of six months, unless it is of a perishable nature, or such magistrate considers that the sale would be for the benefit of the owner.]attachment of property of person absconding.
Judgment:

Prinsep, J.

1. The property, which is the subject of the present appeal, was attached by the Magistrate under Section 1721 of the Code of Criminal Procedure (Act X of 1872) in consequence of the proprietor Boidonath Dutt absconding when accused of committing a criminal offence. The date of the attachment is stated to be the 7th of August 1878. Subsequently a third person, who held a decree against Boidonath Dutt, proceeded to execute it, and attached the same property, which was sold to the plaintiff on the 15th of January 1879. Notwithstanding these proceedings the attachment under the order of the Magistrate still continued, and it appears that, as Boidonath Dutt did not appear within the period specified in the proclamation issued under Section 171, the property at once became (to use the terms of Section 172) 'at the disposal of Government.' We understand by this expression that it came under the absolute control of Government to dispose of, or deal with it, in whatever manner might seem most appropriate and convenient. In April 1880, the Magistrate at a public sale sold the rights of Government to the defendant. We have therefore in the present suit to determine which of these sales conferred the title to this property.

2. The Subordinate Judge has given the plaintiff a decree as against the defendant, because in his opinion the defendant ought to have shown that the proclamation had issued before the plaintiff's purchase, and that the time specified in it for Boidonath's appearance expired before the plaintiff's purchase.

3. These reasons appear to us to be altogether unsound, for the Subordinate Judge should have presumed in accordance with Section 114(e) of the Evidence Act that the judicial acts of the Magistrate were regularly performed, that is to say that, unless the contrary was shown, the proclamation under Section 171 had been properly issued; that Boidonath did not appear within the time specified in the proclamation; and that the property having become at the disposal of Government, the Magistrate transferred it to the defendant. As regards the title of the defendant it appears to us that, so long as the attachment by the Magistrate continued, no title could be conferred by any attachment subsequently made. Section 172 provides that if the person to whom the property belongs does not appear within the specified period, his property (not his right, title and interest) shall be at the disposal of Government, and from the terms of Section 173 it would appear that if the property has been sold, although the person to whom it belonged might be able to show to the satisfaction of the Magistrate that he was not at fault, and therefore not properly responsible for the sale, even then the sale is not to be set aside, and the property restored, but the proceeds of the sale are to be made over to the proprietor.

4. Under these circumstances the suit must be dismissed, the orders of the Courts below being set aside with costs in all the Courts.

1[See. 172: Such Magistrate may order the attachment of any property, moveable or immoveable, or both, belonging to the person so absconding or concealing himself. Such order shall authorize the attachment of any property within the jurisdiction of the Magistrate of the district in whose district it is made; and it shall authorize the attachment of any property without the jurisdiction of the Magistrate of the district, when endorsed by the Magistrate of the district in which such property is situated.

The attachment under this section shall, if the property ordered to be attached be land paying revenue to Government, be made through the Collector of the District in which the land is situate, and, in all other cases, by seizure under the order of the Magistrate having jurisdiction; or by the appointment of a manager and receiver; or by an order prohibiting the payment of rent to the absent person; as such Magistrate deems proper.

If the absent person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of Government, but shall not be sold until the expiration of six months, unless it is of a perishable nature, or such Magistrate considers that the sale would be for the benefit of the owner.]

Attachment of property of person absconding.


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