P L D 1969 Azad J & K 65 (PLP)

"The goods have to be actually seized by the officer of the Court to whom the writ has been given." I, therefore, hold that the execution of the attachment order was illegal. This peon goes to the spot on 17‑12‑

65. After attaching the Station Wagon A J & K 140, a Supurdnama was executed by the petitioner on the same day whereby he undertook to produce the Wagon in the Court on demand. This raises many important questions. The foremost in my mind being as to whether, even if the peon be assumed to have the authority to attach the property, it was within his legal competence at all to give it in the custody of any person? Rule 43 clearly provides that except when the property attachec, is agricultural produce it shall remain in the custody of the officer himself or in the custody of one of his subordinates but the responsibility shall be of the officer himself. The Rule has p used the words `in his own custody' which, plus the casting of personal responsibility on the officer himself, shows that the custody visualized is physically personal. The rule does not speak of any stranger except that of the officer himself or one of his subordinates. This rule has been enlarged by various High Courts but in Azad Kashmir the Civil Procedure Code in force is the one which was in force in former Punjab on 22nd March 1948. There too certain new rules were added on 13‑10‑1928. Here is the relevant part "Provided also that, when the property attached consists of livestock, agricultural implements or other articles which cannot conveniently be removed, and the attaching officer does not act under the first proviso to this rule (which provides for sale in case it is subject to speedy and natural decay or when the expense of keeping it is likely to exceed its value) he may, at the instance of the judgment‑debtor, or of the decree‑holder of any person claiming to be interested in such property, leave it in the village or place where it has been attached‑ (a) in the charge of the person at whose instance the property is retained in such village or place, if such person enters into a bond in the Form No. 15‑A of Appendix E to this Schedule, with one or more sufficient sureties for its production when called for ; or (b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided, and the remuneration of the officer . . . . . ; or (c) in the charge of a village Lumbardar or such other respectable person as will undertake to keep such property, subject to the orders of the Court if such person enters into a bond in Form No. 15‑B of Appendix E with one or more sureties for its production," Briefly summarised, the rule would mean ; that property, apart from agricultural produce, livestocks and agricultural implements, which can be conveniently removed from the place of attachment to the Court house (as another sub‑rule ahead provides) cannot be placed in the custody of any person. Certain High Courts ; for instance Allahabad, have framed separate rules which empower the attaching officer to place even such movable property in the custody of a suitable person. In A I R 1931 All. 567 mention is made of rule 122 of Order XXI which provides "For the safe custody of movable property, other than livestock, the attaching officer shall, subject to approval by the Court, make such arrangements as may be most convenient and economical." In view of the fact that such a rule had not been framed either by the Punjab High Court at least up to March 1948, nor by this High Court we must guard against assuming the exercise of any such powers by the attaching officer and must strictly enforce the procedure provided for by the Code. The Lahore High Court has framed another rule for cases of attachment where a Supurdar cannot be appointed i.e. sub‑rule (2) of rule 43‑A which reads as follows "If attached property is not sold under the first proviso of rule 43, or retained in the village or place where it is attached under second proviso to that rule, it shall be brought to the Court‑house and delivered to the proper officer of the Court." Thus the `Supurdnama' by the petitioner was also illegal. In this case there is also no convincing evidence at all of actual seizure, even by the peon, of the Wagon attached. It appears to have been at the best a paper proceeding. The law clearly lays down that the attachment shall be by actual seizure. The framers of the Code must have deliberately used the word `actual', because the word `seizure' left alone could have been interpreted also as a symbolic seizure ; perhaps that interpretation was in their mind. Perhaps therefore they wanted to emphasise their mind by adding the word `actual' with the word `seizure'. It was ruled in A I R 1939 Cal. 316 at page 319 that :‑ "Attachment of movables of the kind we have here, has to be made under Order XXI, rule 43, C. P. C. The goods have to be actually seized by the officer of the Court to whom the writ has been given. As soon as he seizes the goods, the attachment is complete, and at once an obligation on that officer is imposed by law. He must keep the same in his custody or in the custody of his subordinate." Now I take up the question of the responsibility of a Supurdar, of course, assuming that a Supurdnama had been validly executed. Can he be proceeded against under the Civil or Criminal Law? Section 145 of the C. P. C. is given below "Where any person has become liable as surety ; (a) for the performance of any decree or any part thereof (b) for the restitution of any property taken in execution of a decree ; or (c) for the payment of any money or for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceedings subsequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees and such person shall for the purpose of appeal be deemed a party within the meaning of section 47 Provided that such notice as the Court in each case thinks sufficient has been given to the surety." At one stage there was some doubt as to whether a Supurdar of attached property under rule 43 of Order XXI was covered by section

145. The Lahore High Court, therefore, framed rule 43‑D which is reproduced below : "Any person who has undertaken to keep attached property under rule 43(1)(b) shall be liable to be proceeded against as a surety under section 145 of the Code, and shall be liable to pay in execution proceeding the value of any such property wilfully lost by him." It was held by Sulaiman, C. J. in A I R 1936 All. 555 that "The word `surety' in section 145 is used in a wider sense and applies even to cases where there will be no undertaking for the payment of money and a Supurdar is liable as a surety under section 145." In A I R 1929 All. 266 (2) a suit for damages was brought against the Supurdar for misappropriation of the attached property. Justice Dalal holding the suit to be barred under section 145 read with section 47 of the C. P. C. ruled that the decree‑holder should have proceeded against the Supurdar in the execution department. The learned Judge was perhaps of the view that a specific remedy having been provided for under sections 145/47, no other remedy was available. A I R 1928 Lah. 181, A I R 1933 Mad. 219 and A I R 1936 All. 555 were cases where it was alleged that the Supurdar had misappropriated the property given in his custody. It was held in all these cases that the proper course to adopt was to proceed against him in the same execution proceedings. I have gone through the commentary of sections 405 and 406 P. C. contained in Rattan Lal's Law of Crimes. I came across only 3 rulings where a Supurdar of attached property under C. P. C. was prosecuted under section 406, P. C. The first ruling is reported as Channan Singh ((1934) 36 Cr. L J I19). This ruling was not available anywhere within our jurisdiction. Without the ruling being before me it is not possible to determine in my own humble opinion as to whether it was correctly decided or not. It is also not known if the Court considered the question as to whether he could at all be proceeded against under the Criminal Law. The other ruling is reported as A I R 1937 Bom.

46. I have gone through this authority. It seems to have been assumed that section 406 was available because no objection was raised by the accused to that effect nor did the Court suo moto consider this question. In the 3rd ruling reported as A I R 1918 All. 406, the petitioner had been convicted under section 406 but the High Court changed it into one under section 172, P. C. on the ground that no breach had taken place. The only allegation against the Supurdar was that he did not appear in the Court in response to an order to produce the attached property but evaded service. In this case too, application of section 406 was assumed. Where a wrong is essentially civil but the law provides remedies both in the civil as well as criminal law, the Courts would be exercising correct discretion by insisting upon recourse to civil Courts especially in cases which stand on the dividing lines. It is especially so because there has lately been an t alarming increase in the tendency of the general public to convert even essentially civil disputes into criminal proceedings ; though it is also due to such inordinate delay in the disposal of civil cases that they have earned the nick‑name of "Deewani Zindgani". Authorities on the point are not wanting. I may refer to A I R 1937 Oudh. 331 ; A I R 1925 Lah. 289 and A I R 1933 All.

818. The preponderance of authorities thus being for proceeding against a defaulting Supurdar in the very execution proceedings instead of launching criminal prosecution, I feel that in this particular case, criminal prosecution may not have been launched against the petitioner. The Court while making a report to the Police of breach of trust may probably have been under the impression that the sale of the Wagon having taken place, it was no longer available for satisfaction of the decree. That was erroneous. Whenever a Court attaches some property, it passes into the custody of the` Court itself and although the title of the property remains with E the judgment‑debtor who is to benefit from the profit and bear the loss, if any, until its final disposition by the Court, it cannot be sold in a manner that can defeat the attachment. Here I quote from A I R 1936 All. 555 "The essence of an attachment order is that the property should come under the control of the Court and any transfer or disposal of it should be void and subject to the attachment." Now that it has been determined that almost the entire proceedings taken by the execution Court were illegal. I have to see whether the petitioner can still be held guilty of the offence under section 406, P. C. Criminal breach of trust has been defined in section 405, P. C. which is as follows : "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits `criminal breach of trust'." This section can thus be divided into two heads (a) Entrustment of property to anyone prescribing the mode of its discharge, (6) Dishonest misappropriation or conversion to one's own use or dishonest user or disposal of that property in violation of the mode prescribed for its discharge. The property did not belong to the petitioner. He did not get ownership of it by the Supurdnama. He was not even a surety within the meaning of section 145 or rule 43‑D. He undertook to produce it on demand and, therefore, independently of the legality or otherwise of the execution proceedings, if there was entrustment of the property to the petitioner, within the meaning of section 405, at least one ingredient could be held proved. The use of the words `whoever' and `in any manner' in section 405 show that the word entrustment has a wider meaning. A Division Bench of the Madras High Court has defined this term in the following words in a ruling reported as A I R 1936 Mad. 1 "The word 'entrustment' in section 405 is not necessarily a term of law. It may have different implications in different contexts. In its most general significance all it imports is handing over the possession for some purpose which may not imply the conferring of any proprietary rights at all." Entrustment can both be physical as well as symbolical or constructive. What is the requirement of section 405? Would it cover the case of a person who may be stated to have been constructively entrusted with the property? As Penal Law has to be interpreted strictly and also, as I believe, in favour of the accused, I think that criminal breach of trust cannot be held proved unless it is clearly established that possession of the property physically changed hands from someone to the accused. The impression that one gets after going through the documents of attachment and entrustment as also the evidence led in the trial Court, is that physical possession of the Wagon was not transferred to the petitioner. It is in evidence that the Station Wagon was in a road‑worthy condition. When it was attached it must have been parked somewhere. Whenever the Court is called upon to determine the factum of possession, it has always to consider the nature of property to determine such possession. Now it can be said safely that in case of transports it is the handing over of the keys that determines the change of possession. Without the handing over of keys it cannot be said that the possession was transferred. I have carefully gone through the evidence. It is nowhere stated by any witness nor mentioned in any document that the keys of the vehicle were either taken possession of by the attaching officer or given in possession of the petitioner. These facts confirm me in my conclusion that what was transferred through this Supurdnama was mere symbolical possession. It continued to remain in the physical possession of the judgment‑debtor who must have continued to ply it and ultimately it was he who sold it. The fact that the judgment‑debtor is the elder brother of the petitioner lends further weight to this conclusion. It has been perhaps rightly said The relationship is such that the judgment‑debtor can be presumed to have undue influence over him. His selection therefore was thoughtless. The Supurdar should be a person who is capable of exercising effective control over the attached property. That is why the Code in the relevant rule 43 (1) (c) purposely distinguishes him by giving `respectability' as his sole qualification. Respectable is not a legal term. Nothing can be more foreign to a law than to differentiate between men on grounds of respectability ; and yet this word has been used. l t K seems to my mind, therefore, that it has to be understood in terms of capability and suitability in opposition to the owner of the attached property whose hostile attitude can be assumed as something essentially natural. I may also point out that the order of attaching the Station Wagon which purports to have been sold for Rs. 3,000 for the realisation of a small amount of Rs. 155 does no credit to the L discretionary capabilities of the learned Sub‑Judge. The attached property must have some reasonable price resemblance with the amount of the decree. I find that on the file is an application of the decree‑holder dated 18‑10‑65 seeking attachment of two cows and the Station Wagon in question. A remarkable sense of market value. Again, the bona fides of the petitioner could have been proved one way or the other had he been called upon by the executing Court to deposit in the Court or pay the decree‑holder the decretal amount of Rs. 155 because the attachment had been made only to satisfy the decree for this amount. In the absence of such an order the innocence of the petitioner stands reinforced. The reason given by the trial Court for holding the accused guilty is the sale of the vehicle by the owner‑cum‑judgment‑debtor in his presence and his consequent failure to produce it in the Court. The learned Sessions Judge also states that the petitioner participated in the sale. The evidence in support of this finding has also been gone through by me. Ali Asghar P. W. 5 states only this much that the petitioner Kala was also present. The other two witnesses examined in connection with this sale are Suleman Shah and Inayat Ullah father of the vendees. Suleman Shah does not mention the presence of Kala at all. Inayat Ullah states that he purchased this Wagon from Lakhi Zaman as well as the petitioner. The statement of Inayat Ullah is repudiated by the affidavit Exh. P. E. which purports to be the sale‑deed of the Station Wagon in question. The name of petitioner Kala does not figure in the affidavit at all. These facts and the application of the decree‑holder in the execution Court, stating that the Station Wagon had been sold by judgment‑debtor, (not the petitioner) have not been considered by the learned Sessions Judge. Since the presence of Kala at the time of sale has thus become extremely doubtful, one cannot but give the benefit of this doubt to him. I, therefore, hold that the presence of Kala at the time of sale is not proved. There is no evidence that the petitioner Supurdar got any part of the sale price. I, therefore, do not understand how it can be held that the petitioner either misappropriated the trust property or converted it to his own use or disposed it off in M violation of the contract entered into between him and Ashiq, Hussain Shah. The record of the execution Court reveals that the decree has since been satisfied. The order‑sheet of 23rd) January 1967 records that the decree‑holder had made an application that the decretal amount had been paid to him and he did not therefore want to proceed further. Thereupon the Court dismissed the execution proceedings on the same date. The judgment by the A. D. M., convicting the petitioner was announced on 29th January 1968 i.e. a year later. In view of all these facts and conclusions arrived at, I set aside the conviction of the petitioner and accepting his revision petition acquit him. Before concluding I would like to add that I have been particularly struck by the following passage appearing in the judgment of the learned Sessions Judge "If the orders of the Civil Courts are flouted in such a manner without justification the sanctity of the orders of the Civil Courts is seriously undermined, affecting the smooth running of the administration of justice. In view of this fact, I am not inclined to reduce the sentence of the accused to fine as has been pleaded by the learned counsel for the appellant." This passage smells of class consciousness and has clearly influenced the mind of the learned Sessions Judge in taking a graver view of the case Justice should not only be done but it should also seem to have been done, is a golden saying. This should especially be taken care of when in a case, like the present one, a Court and especially a subordinate is the complainant. The conclusion or the fact that the order of a Court has been disobeyed, should not make the offence any graver because Court is not a weak or helpless institution but has very wide powers nr to vindicate its authority. So, greater the authority, greater should the restraint be. So long as the universe exists, there will always be people who would disobey the orders of the Courts and there would always be Courts who would bring them to justice. That is part of this world ; that is essentially worldly but for that we need not be touchy. S. A. H. Petition accepted.