V.D.Bhargava, J. - (1.) This is an application on behalf on four persons who have been convicted under Section 147, 323 read with Section 149, I.P.C. and sentenced to three months rigorous imprisonment and a fine of Rs. 75/- each under each count.
(2.) The applicants had obstructed a commissioner, Sri Tejvir Singh, who had been appointed to execute a decree. He went to the spot on the 31st July, 1953 The accused were challaned under Section 147, 323 read with Section 149, and 332 read with Section 149, I.P.C. In appeal the Sessions Judge set aside the conviction under Section 332 read with Section 149, I.P.C. on the ground that by virtue of Section 75, Civil Procedure Code a commissioner could not be appointed for executing a decree by delivery of possession and, therefore, he was of opinion that Shri Tejvir Singh, when he went to effect delivery of possession, was not acting as a public officer.
(3.) It was urged by learned Counsel for the applicants that since he was not properly appointed and he wanted to dispossess the accused of their property, the accused had perfect right to resist it. Therefore, they could not be convicted under Section 147 and 23 read with Section 149, I.P.C. I am unable to agree with this contention. In my opinion the learned Sessions Judge erred in acquitting the accused under Section 332 read with Section 149. I.P.C. What Section 75, Civil Procedure Code prescribes is that a commissioner can be appointed to perform certain junctions which in fact are the work of the court itself, i.e., he can be appointed for the purpose of examining any person, making a local inspection, examining or adjudicating accounts or making a partition There are all functions of the court and it is the court itself which should have done these functions. These powers can be delegated by the court to a commissioner. Section 75 does not say that a commissioner cannot be appointed for any other purpose which really is not the function of the court. On the other hand Section 51, Civil Procedure Code prescribes that a decree can be executed in such other manner as the nature of the relief granted may require, and in case, the decree is for delivery of possession it cannot be executed except by appointing somebody just to go and execute the decree, it may be an Amin or a lawyer who may be called a commissioner for the sake of convenience. Besides that. Order 21, Rule 24(2) clearly shows how the process will issue. The court will issue such process which shall bear the date on which it is issued and it 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 shall be delivered to the proper officer to be executed. Thus it is clear that the court, for the purpose of execution will appoint some officer who will execute the process.;