1. In this case the allegations of the prosecution were, that in a money-suit brought by a certain plaintiff against the mother of the accused person, certain property including a house with corrugated iron roof was attached before judgment, the said attachment being made under the provisions of Order XXXVIII, Rule 5, Civil Procedure Code. The further case for the precaution was, that after this attachment the house in question was dismantled and the materials were about to be removed and disposed of. Being satisfied by an affidavit submitted by the plaintiff in the suit that the materials of the house were about to be removed and disposed of, the learned Munsif in whose Court the suit was pending issued a temporary injunction under the provisions of Order XXXIX, Rule 1(6), restraining the defendant in the suit from removing the materials of the house and further directing that the materials of the house including the arrogated iron sheets should be removed to the Court house for their protection and preservation. It is now next alleged by the precaution that the peon entrusted with the execution of these warrants embodying the Munsif's orders and those accompanying him were prevented from removing the materials as they were required to do by the Munsif and were assaulted by the accused person, who is the son of the defendant and others. The complaint of the peon on these allegations was one charging the defendant and others with the commission of offenses punishable under Sections 186, 188, 143 and 332 of the Indian Penal Code.
2. The Trying Magistrate found that the prosecution was substantially true, but taking the view that the attachment made under the provisions of Order XXXVIII, Rule 5, was a bar to any further action by the Munsif under Order XXXIX, Rule 1(6) acquitted the accused on the ground that the Munsif had no jurisdiction to issue the warrants entrusted to the peon for execution, In this view, in our opinion, 'he is clearly wrong'. If for the preservation and protection of property already attaahed further action under Order XXXIX. becomes necessary, there is, in our opinion, no bar to the taking of such action. The orders of the Munsif appear to us to be clearly within the stops of Order XXXIX, Rule 1(6) and also under Order XXXIX, Clause 7(a) of the Code of Civil Procedure. Further, even if it be supposed that, in issuing those instructions and direction, the Munsif seeded his jurisdiction, that would be no defense to an assault committed upon the peon, if the peon were sating in good faith under colour of his office.
3. In this view of the matter, we set aside the order complained of and direst that the abased person be re-tried, such re-trial to take place in the Court of some Magistrate exercising the powers of a Magistrate of the First Class. Such Magistrate to be nominated by the District Magistrate.