Patna High Court
Nagarmal Marwari vs Emperor on 7 December, 1931
Equivalent citations: 139IND. CAS.834, AIR 1932 PATNA 279
JUDGMENT Courtney-Terrell, C.J.
1. This is a petition for the revision of a judgment of the Sessions Judge of Sambalpur rejecting an appeal from the decision of a First Class Magistrate of Sambalpur, by which the four petitioners were convicted under Section 188 of the Indian Penal Code and sentenced for resisting a Public Officer in the execution of his duty. The relevant facts as found by the Sessions Judge are as follows: Three of the petitioners were creditors of one Yusuf Ali who had a shop at Sambalpur for the sale of stationery and other miscellaneous articles. These creditors between them claimed from Yusuf Ali a sum of roughly Rs. 3,000. They were also apparently friends of his. On the 19th November another creditor Rai Bahadur Biseswar Daga began a suit in the Munsif's Court for the recovery of a sum of Rs. 900 and anticipating that this suit was about to be filed and that the plaintiff would apply for an order of attachment the petitioners in arrangement with Yusuf Ali began to transfer from the shop of Yusuf Ali to their own shop which is close by the goods standing in Yusuf Ali's shop. They succeeded in transferring to their own premises a considerable quantity of goods. As the petitioners and Yusuf Ali anticipated the plaintiff Rai Bahadur Biseswar Daga in his suit did in fact file an application forattach-ment before judgment. The writ of attachment directed the officer to attach the articles belonging to the defendant mentioned below as identified by the plaintiffs and keep the same under safe and secure custody until the further order of the court.
2. Then the schedule given at the bottom states as follow:
The various miscellaneous articles consisting of lanterns, soaps, trunks, karahis, baltis, perfumed oils, etc., of the defendant's stationery shop at Dalaipara, Sambalpur.
3. Armed with this writ of attachment the peon went at half past four on the 19th November to execute it accompanied by an identifier on behalf of the plaintiff. He found the shop of Yusuf Ali locked but the identifier pointed out a godown adjacent to the shop which is in fact part of the premises belonging to the petitioners. There was no key with which to open the door and the peon wished to break down the door when the petitioners appeared and resisted him and ordered him to leave the place. He went back to the Munsif and reported to him what had occurred and showed him in support of his statement some sentences that had been written out by the identifier on the back of the writ of attachment narrating the facts. The Munsif directed the nazir himself to go with the peon and to seal up the door of the godown which had been pointed out by the identifier, and when the nazir and the peon went to perform this operation the petitioners again obstructed them. Then the nazir insisted upon performing the act he had been ordered to do and the petitioners left the place. They have since been prosecuted on the complaint of the Munsif under Section 186 of the Indian Penal Code, for resisting his officers acting in pursuance of their duty. They were convicted by the Magistrate and on appeal the learned Sessions Judge has confirmed the conviction although he hag reduced the sentence.
4. The substantial point taken on the application for revision is this. It is said by the petitioners that the act performed by the peon and the nazir in sealing up the godown which belonged to them was an unlawful act and one which their warrant of attachment did not entitle them to perform. It is argued that the goods of which they were in search were in the possession of the petitioners and not in the possession of Yusuf Ali. The petitioners in fact set up before the Magistrate and before the Sessions Judge the assertion that they had in fact purchased these goods from Yusuf on the preceding day, that is tosay, on the 18th November, and they produced some written instrument in support of their assertion. The learned Sessions Judge has found that the story of a transfer of the goods on the preceding day to the petitioners is untrue and that the goods still remained the property of Yusuf Ali, but he has gone on tosay that the possession claimed by the petitioners of the goods in question is not a bona fide possession but is merely possession on behalf of the debtor Yusuf Ali and, therefore, that Rule 46 of Order XXI of the Code of Civil Procedure, has no application and the procedure of the nazir and peon in sealing up the ware house was lawful. It has been argued here on behalf of the Crown and against the petitioners in revision that Rule 46 of Order XXI applies only to circumstances in which possession by a third party is bona fide. It has scarcely, however, been attempted to argue that the provisions for attachment cover the right of the executing officer to seal up premises other than those used by the judgment-debtor for containing the goods which an attempt is made to seize. In my opinion the contention of the petitioners is sound. Rule 46 provides means for dealing by the attaching officer with goods which are in they physical possession of a third party whether or not the ownership of the goods be in the judgment-debtor or in the third party and whether or not the legal right to possession be in the judgment-debtor or in the third party. The rule is only intended to deal with the case of physical possession by a party other than the judgment-debtor. To hold otherwise would give rise to great practical inconvenience because it frequently happens that the owner of a warehouse has large, quantities of goods belonging to various persons and whether or not he allows persons to have access to that warehouse for the purpose of dealing at their own time and their own will with the goods placed in his charge, it would nevertheless be an extraordinary proceeding to allow the officers of the court to seal up the warehouse and thereby prevent owners of goods which had no concern whatever with the attachment order from getting at such goods. Accordingly on the finding of fact arrived at by the learned Sessions Judge I am of opinion that his conclusion in law is unsound and that having found that the physical possession was in the hands of the petitioners and not in the hands of the judgment-debtor he should in law have proceeded then to find that the procedure of the nazir and peon in attempting to seal up the petitioners' warehouse was unjustified. The actual physical resistance to the peon does not appear in the circumstances to have been more than they were justified in using in resisting an unlawful proceeding. No injury seems to have been inflicted upon him and accordingly, in my opinion, no offence has in law been committed and I would allow this application in revision and direct that the conviction be set aside and the fine if paid be refunded.
5. A notice for enhancement of sentence was issued and this will now be discharged.
Kulwant Sahay, J.
6. I agree.