Rachhpal Singh, J - (1.)This is a plaintiff's second appeal arising out of a suit to recover a sum of money. One Jairaj Das, who is a son of the plaintiff was convicted on 5 February 1932 under Section 17(1), Criminal Laws Amendment Act. Jairaj was sentenced to a term of imprisonment and also to pay a sum of Rs. 300 as fine. The Government got an order of attachment for the purpose of realization of fine and certain buffaloes and bullocks were attached. The plaintiff, in order to save that property from sale paid in a sum of Rs. 300 to the Government on 27 February 1932. Later on, the plaintiff instituted a suit against the Secretary of State for India in Council to recover this sum. He alleged that the payment which he made was made under coercion and that the property attached belonged to him and not to his son and that he was therefore entitled to recover Rs. 300 together with interest by way of damages.
(2.)The defence of the Secretary of State for India in Council was that the above- mentioned sum was not paid by the plaintiff and therefore he was not entitled to recover it. Further, it was alleged that the attached animals beloged exclusively to Jairaj, the son of the plaintiff, that the payment made was a voluntary one, that there was no coercion and that the suit was barred by limitation. Both the Courts below have dismissed the plaintiff's suit who has now come up in second appeal before this Court. It may be stated here that it has been found by the Courts below that the property attached was not the exclusive property of the plaintiff himself but was joint family property. The Courts further found that the payment was voluntary and not made under coercion.
(3.)The question which I have to decide in this case is whether the payment of fine by the plaintiff was made under coercion and whether the plaintiff is entitled to recover the amount paid by him. No other point was argued before me. In order to decide this case, we have to remember that the property which was attached was joint family property of the plaintiff and his sons which was owned by them as coparceners. The trial Court took the view that the payment by the plaintiff was voluntary and not made under coercion. The learned Munsif referred to the evidence of Husainulabdin who had been examined by the plaintiff and who stated that Rs. 300 were paid by the plaintiff voluntarily and that no coercion or force was brought to bear upon him. The learned Munsif also referred to the evidence of the plaintiff himself and remarked that the plaintiff had not stated that he was coerced into paying the amount and all that he said was that because of the attachment he had made the payment. The learned Judge of the Court below has accepted the finding of the learned Munsif that there was no coercion. In my opinion, both the Courts below were wrong in holding that coercion was not practised. The wrong view is due to the fact that apparently the learned Munsif thought that Home kind of overt act had to be established by the plaintiff before he could be hoard to say that coercion had been used by the defendant in realizing the money. It is clear that the plaintiff was not required to prove any such thing. For the purpose of disposing of this appeal, I will accept the finding of both the Courts below Unit no force was used in realizing the fine from the plaintiff. I will take it further that it is established that the defendant got an attachment effected of the cattle belonging to the joint family and when that was done the plaintiff made the payment. On the admitted facts of the case have to decide whether the plaintiff is entitled to show that the payment was made under coercion. Section 386, Criminal P.C., enacts as follows: (1) Whenever an offender has been sentenced to pay a firm, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say it may: (a) Issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender. (b) Issue a warrant to the Collector of the District authorizing him to realize the amount by execution according to civil process against the moveable or immovable property, or both, of the defaulters. Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so....