B.N.Nigam, J. - (1.) Mrs. v. G. Peterson has filed the present petition which has been referred to a Bench by a learned Single Judge by order dated 22nd of May 1961 on the ground that the original con. tempt proceedings were being heard by a Bench. The facts of this case 'have been, in the main, given in judgment of my learned brother and I will mention only a few more facts given in the petition,. It appears that the petitioner's mother had executed, a will on 23rd of January, 1938 devising all lire property to her three children including the present petitioner and Mr. O. V. Forbes. On 30th November 1939 a probate was granted in respect of this will and in proceedings connected with that probate, the applicant Mrs. V. G. Peterson filed an application on 6-5-1943 alleging that Mr. O. V. Forbes, now dead, had committed slander against the Court. Thereupon a notice was issued to Mr. Forbes. He failed to appear and the Court then by order dated 23rd September. 1943 took action to compel the attendance of Mr. Forbes, The relevant portion of the order reads: Accordingly we order that action be taken under Section 87 of the Code of Criminal Procedure against Mr. Forbes and direct the issue of a written proclamation requiring him t appear in this Court on the 25th November, 1943, at 10 A.M. This proclamation will be issued in strict as cordage with the requirements of Section 87, Criminal Procedure Code ... Under Section 88 of the Code of Criminal Procedure we further order attachment of the movable and immovable property belonging to Mr. Forbes within the jurisdiction of this Court including. 1. G. P. Notes and bonds for Rs. 1,07,080/-in the hands of the Registrar of this Court; 2. Rs. 12,250/- deposited in this Court in the personal ledger, Trustees and Stake Holders Fund; 3. G. P. Notes belonging t0 Mr. Forbes of the face value of Rs. 55,000/- attached in Execution Case No. 16 of 1942 in the court of the Civil Judge Lucknow Dr. Hari Shankar Dubey v. O. V,. Forbes. A copy of this order was directed to be served upon Mrs. Peterson. She was directed not to pay over any sum or property in her custody as an executrix to Mr. O. V. Forbes Or to any Ono on his behalf. Prohibitory orders restraining the Registrar of 'his Court and the Civil Judge, Lucknow were also directed to be issued..
(2.) Then by a subsequent order dated South March, 1944 after recording evidence a Bench of the Chief Court of Avadh slated: We have recorded the evidence im tine "absence of Mr. Forbes, who has not appeared. It is not possible under the circumstances to finally dispose of these applications unless and until Mr. Forbes voluntarily appears or is arrested and is brought before us. These applications will therefore be adjourned sine die until Mr. Forbes appears or is arrested. We direct the District Magistrate of tuck-now to arrest Mr. O. V. Forbes under a non bailable warrant whenever he enters the United Provinces and produce him before this Court (2a) Another order was passed on 21st September 1944 and therein it is stated : On 'the 23rd September, 1943, we passed an order Under Section 88 of the Code1 of Criminal Procedure directing attachment of the movable and immovable properties belonging to Mr. O. V. Forbes within 'the jurisdiction of this Court. The three properties attached were then mentioned and there was a reference to the prohibitory orders issued. The Bench then stated; By a subsequent order dated the 30th March, 1944. we took action under Sub-section (7) of See. 88 of the Code of Criminal Procedure and ordered that the aforesaid property was at the disposal of the Government. As the City Magistrate 'has .been directed by the Provincial Government to take suitable action for (she disposal of the properly of M'". O. V. Forbes, it is necessary that the prohibitory order issued against the Registrar and the Civil Judge of Lucknow should now be withdrawn. Accordingly, We withdraw the prohibitory order and the property which was attached; and was in the custody of tile Registrar and the Civil Judge should now be sent to the City Magistrate for disposal according to law. A further order was passed on the same day and the directed : As all the property of Mr. Forbes is at the disposal of the .Provincial Government and the City Magistrate has been directed by the Government to take suitable action for the disposal of his property if will be necessary for Mrs. Peter-son, the executrix, to 'hand over all the property in her possession. which she may be holding as a custodian for Mr. O. V. Forbes. We order accordingly. (2b) From the above quotations it won]-I appear that what the Court intended to attach was property belonging to Mr. Forbes, The same position. was taken up by Mrs. Peterson in several of the documents presented on her behalf, Annexure 7 is- a copy of the letter sent by Mrs. Peterson, do the State U. P. on 4th April, 1980. In paragraph 7 of this application she states that she was possessed of the property of Mr. Forbes and a copy of the order was served on her requesting her to make over to Government "the aforesaid property belonging to Mr. O. V. Forbes". Again in the next two paragraphs the reference is to the assets of Mr. Forbes. In the writ petition moved by Mrs. Peterson in this Court on 29th November," 1960 she stated in paragraph 6 : That on 23-9-1943 the aforesaid court was pleased to order attachment of the moveable and immoveable property of the aforesaid O. V. Forbes Under Section 88 of the Code of Criminal Procedure. The second ground taken in the said petition is that no order of confiscation was passed by the Court at any stage of the proceedings and accordingly "the attached property reverts to the heirs of Mr. O. V. Forbes. Now this position has been abandoned. The position now taken up is that the property which was attached by the court, was not the property belonging to Mr. O. V. Forbes tout is a not of the undistributed assets left by Mrs. A. E. Forbes. In paragraph 8 of the present petition it is stated : The said attached property was at the time an undistributed part of the estate of the late Mrs. A. E. Forbes. Again in paragraph 10 the attached property is referred to as "an undistributed p3rt of the estate of the late Mrs. "A., E. Forbes'1, In the writ petition also the petitioner took up the position, that the securities and the money, which were ultimately transferred to the Government were "part of the unadministered estate of the ate Mrs. A, E. Forbes.
(3.) As I' have indicated1 earlier, this Court never intended to attach any part of the unadministered estate of Mrs. a. E. Forbes. this Court attached property belonging to Mr. O. V. Forbes and that is made clear in the extracts given by me earlier and also, in the position taken up b the present petitioner at earlier stages. In any case the order dated 21-9-1944 makes it clear that Mrs. Peterson was to hand Over that property which she may be "holding as a custodian for Mr. O. V. Fortes.;