Kollivenkataratnam vs The Collector of Kistna and Others

Venkatasubba Rao, J.—The lower Court''s order is clearly wrong and must be set aside. Section 386 of the Criminal Procedure Code

prescribes two modes of recovering a fine imposed upon an offender. We are now concerned with the second method the one referred to in

Clause (b) of that section. The Court imposing the fine may under that clause issue a warrant to the Collector of the District authorising him to

realise the amount by execution either against the moveable or Immovable property or both of the defaulter. The section goes on to say -that such

warrant shall be deemed to be a decree, the Collector to be the decree-holder and the nearest Civil Court the Court which passed the decree.

Finally, the section enacts that all the provisions of the CPC as to execution of decrees shall apply to the proceeding.

The offender in this case is a member of a Hindu coparcenary of which the petitioner, his father is the manager. The attachment was of the

standing crops and it was effected by seizure. The father has preferred a claim urging first, that his son had no right to the property at all and

secondly, even granting that he had a right, that the attachment by seizure contravenes the provision of Order 21, Rule 47 of the Code. That

provision runs as follows:

Where the property to be attached consists of the share or interest of the judgment-debtor in moveable property belonging to him and another as

co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in

any way.

This rule provides that the attachment shall be effected by the issue of a prohibitory order for the obvious reason that a mere share or interest is

incapable of actual seizure. Even assuming that the property attached was owned by the joint family, the defaulter''s share was unascertained and it

is only in virtue of the rule of Hindu Law as laid down by the Courts, that his undivided interest would pass to an alienee from'' Government, who in

his turn for working out his rights would be obliged to institute a suit for partition.

It is unnecessary to decide whether Order 21. Rule 47, which in turn refers to co-owners, applies to the members of a Hindu co-parcenary. But

whether that provision expressly applies or not, the father was perfectly entitled to say that the property attached being the entire crops which were

physically seized, his rights were infringed.

The lower Court therefore ought to have allowed the claim petition. It refers to the circumstances that the crops were handed over to the

petitioner on his executing a security bond and on this ground, which has no bearing on the question to be decided, has refused him relief.

The lower Court''s order is reversed and the Civil Revision Petition is allowed with costs both here and in the lower Court.

C.R.P. 1388 of 1934.

The judgment, which I have just delivered in Civil Revision Petition 1387 of 1934, governs this Civil Revision Petition also, which is accordingly

allowed with costs both here and in the lower Court.