Sahdeo Singh and Another vs Ram Kishun Singh and Another

Wort, J.—This Rule is directed against the learned order of the Magistrate dated 6th August 1930, the substance of which is to order certain property for sale in execution of costs which had been ordered to be paid by the first party in proceedings u/s 145, Criminal P.C. The petitioners are persons who are making a claim to the property which has been seized u/s 386, Sub-Clause (a), Criminal P.C. The argument which is addressed to us is this: that having regard to the fact that the petitioners and probably the second party to the Section 145 proceedings are claiming this property as a joint property the appropriate procedure is not Sub-Clause (a) but Sub-Clause (b) and I should add that at this stage the petitioners before us, as I understand the argument are either asking now or will ask in future that in the property the first party to the Section 145 proceedings had no claim whatsoever, But that is a question which we do not decide.

On 6th August the petitioners, it appears having made a claim to the property a police report was received by the Magistrate, and he states that Madan Singh had not discharged the onus which was upon him to show that the property was separate. There seems to be some misconception in the mind of the learned Magistrate on this point, because the contention that was being made by the petitioners was that it was the joint property as I have already said and that Madan the first party to the Section 145 proceedings, had no claim at all. Now the matter comes before us after having been before a learned Judge of this Court who came to the conclusion, it would appear, that there was a difference of opinion between the Bombay High Court and the Calcutta High Court as to the meaning of the words "property belonging to the offender" in Clause (a) and "property of the defaulter" in Clause (b), that is to say, that the Calcutta High Court on the one hand has decided in the case of the Queen-Empress v. Sita Nath Mitra [1892] 20 Cal. 478 that the meaning of the words to which I have just made reference was that only the property which was the separate property of the offender or defaulter could be executed upon in the manner provided in Section 386.

The Bombay High Court in the case of Shivlingappa Nijappa Tubchi Vs. Gurlingava Basappa Tubchi, came to a different conclusion. However it does not become necessary for this Court to determine that question because the learned advocate, who appears on behalf of the petitioners, concedes that if it be shown that Madan, the first party to the Section 145 proceedings against whom costs were awarded had a share in this property, then that portion of the property can be attached and sold in execution of these costs. That is admitted and on the other hand the learned advocate who appears on behalf of the respondents before us, is not concerned in disputing that admission. In those circumstances it becomes unnecessary to decide whether the view which this Court takes is that which has been taken by the Calcutta High Court or which the Bombay High Court took of this matter is correct. If we came to analyse this in any event it seems to me that the Calcutta case might be differentiated on grounds to which I need make no reference.

That being the case the question arises is whether the argument on behalf of the petitioners can prevail. I have already indicated, there appears to be some confusion in the mind of the Magistrate as regards the onus on the question of jointness or otherwise of this property but it is abundantly clear that there is some dispute at any rate between the petitioners on the one hand and the first party to the Section 145 proceedings on the other hand as to whether this is a separate property of the petitioners or whether it is a joint property of the petitioners and of the defaulter in the Section 145 proceedings.

Now it seems to me that in those circumstances the better method to have adopted would have been to have proceeded under Sub-Clause (b) under which a warrant having been issued by the Collector of the district the civil Court will proceed to hear and determine the question which arises in the matter and for those reasons without saying anything further in my judgment the order should be set aside and the learned Magistrate should proceed u/s 386, Clause (b), Criminal P.C. The Rule is made absolute.

Scroope, J.

I agree.