BENI Vs. EMPEROR THROUGH YASIN

JUDGEMENT

(1.) This case was heard by me on August 6, 1934, when I directed that the amin of the Civil Court should be examined and his evidence tested carefully by the execution record of case No. 67 of 1933 of the Court of Judge, Small Causes, at Pilibhit. The amin was examined and cross-examined and his evidence has been certified to this Court along with a note by the Judge.

(2.) The facts of the case might be staled briefly once more. On March 24, 1933, the amin of the Civil Court went to attach certain crops belonging to Bhaggi in execution of a decree obtained by Jagmohan Lai. It is said that the crops were attached and entrusted to custodian. Some days afterwards, that is, on April 2, 1933, Beni, the applicant before me, removed the crops in spite of a remonstrance by the sapurdar. Upon theses facts Beni was convicted) of an offence under Section 329, Indian Penal Cede, and sentenced to pay a fine of Rs. 50.

(3.) The contention of the applicant before me as well as before the Courts below was that the attachment was illegal and consequently there could be no theft if the applicant removed the crops; Reliance was placed on the case of Ram Sakhal Singh v. Emperor in which Niamat-ull-ah, J., held that where attachment of movable crops is made merely by beat of drum and the procedure prescribed by Order XXI, Rule 44, Civil Procedure Code, is not followed, the produce cannot be deemed to have passed from the possession of the judgment-debtor into the possession of the Court, and) if therefore, the crops are removed with the consent of the judgment-debtor the person removing the crops cannot be said to be guilty of theft. The argument of the applicant is that the procedure prescribed by Order XXI, Rule 44, Civil Procedure Code was not followed in the present case. As there was some controversy on this point when the case was heard by me on the last occasion and as the evidence of the amin was not full, I considered it desirable have the amin examined afresh. He now says that he received one warrant of attachment from the Court and he prepared two copies of the warrant himself and affixed one such copy on the land where the crop was grown and another copy on the outer door of the residential house of the judgment-debtor. He admits that the copies of the warrant o attachment were not sent to him by the Court but that he himself prepared the copies of the warrants. The learned Judge before wham the amin was examined has appended a note, from which it would appear that, he felt some difficulty in accepting the evidence of the amin. I have similar difficulty myself, but even if it be assumed that the amin is speaking the truth, I agree with the applicant s Counsel that the formalities prescribed by Order XXI, Rule 44, Civil Procedure Code, have not been complied with. There was no warrant for the preparation of the copies by the amin. Under Order XXI, Rule 24, Civil Procedure Code, every process issued by a Court for the execution of the decree shall bear date the day on which it is issueed and shall be signed by the Judge or such Officer as the Court may appoint in this behalf and shall be sealed with the seal of the Court and delivered to the proper officer to be executed. The copies that were prepared by the amin might have borne date the day on which it was issued but they were not signed by the Judge and they were not sealed with the seal of the Court. The amins evidence makes this clear. He says that the warrants were not sent to him by the Court and that he himself prepared the copies of the warrants. It is, therefore, obvious that the copies wore signed by the amin and did not bear the seal of the Court. As pointed out by me in my former order their Lordships of the Privy Council have said that no property can be declared to be attached unless first the order of attachment has been issued and secondly in execution of that order the other things prescribed by the rules in the Code have been done. The Code prescribes under Order XXI, Rule 24 for the processes to be signed by the Judge or such Officer as the Court may appoint in this behalf and for the processes to be sealed with the seal of the Court, It is doubtful if the amin can be deemed to be an officer appointed by the Court in this behalf and had the power to sign the process. In Ram Dayal v. Mahtab Singh 7 A. 506 their Lordships of the Privy Council intimated that the judgment of the Calcutta High Court was correct. In that case Oldfield, J., had observed that: