V G PETERSON Vs. O V FORBES

JUDGEMENT

(1.) This appeal by special leave is against an order of the High Court at Allahabad rejecting on August 28, 1961 an application made by the present appellant. For a proper appreciation of the contention raised in the appeal it is necessary to set out in some detail the complicated facts which gave rise to her application.

(2.) It appears that on January 23, 1938 the appellant's mother Mrs. A. E. Forbes executed a will leaving all her property to her three children, viz., the appellant, Mrs. V. G. Peterson, Mrs. E. D. Earle and Mr. O. V. Forbes. The testatrix died on June 6, 1939 and this appellant applied for probate. The probate was granted on November 30, 1939. on may 4. 1943 when Criminal Appeal No. 9 of 1943 was being argued before a single Judge of the Oudh Chief Court the Counsel for the State brought it to the notice of the judge that Mr. O. V. Forbes-brother of the present appellant had made in his application before the Trial Court and in other ways certain aspersions against the conduct of the Trial Court which amounted to contempt of Court. The learned Judge ordered the issue of notice against Mr. O.V. Forbes in this matter, on May 6, 1943 the present appellant also filed an application for similar action under the Contempt of Courts Act against her brother Mr. Forbes on this also notice was issued to Mr. Forbes. As the notices are not on record we do not know the actual terms of the notice; but it does not appear to be disputed that by these notices Mr. Forbes was asked to appear before the Oudh Chief Court to show cause why he should not be proceeded against for contempt of court. Mr. Forbes however did not appear. Some time after this a bailable warrant appears to have been issued for the arrest of Mr. Forbes. The warrant was returned unexecuted. A registered notice was thereafter issued under the orders of the Court asking Mr. Forbes to attend the Oudh Chief Court on September 23, 1943. On that date also he did not appear. The learned Judges of the Chief Court being of opinion that Mr. Forbes was concealing himself only to avoid the execution of the warrant, made the following order:- Accordingly we order that action be taken under Section 87 of the Code of Criminal Procedure against Mr. Forbes and direct the issue of a written proclamation requiring him to appear in this Court on the 25th November, 1543 at 10. a m. This proclamation will be issued in strict accordance with the requirements of Section 87 Cr. P. C. The proclamation will also be published once in the Poincer of Lucknow and the Daily Statesman of Calcutta. Under S. 88 of the Code of Criminal Procedure we further order attachment of the moveable and immoveable property belonging to Mr. Forbes within the jurisdiction of this Court including:-

(3.) G. P. proclamation was duly published and certain property was attached on the basis that it was the property of Mr. O. V. Forbes. on March 30, 1944, the Oudh Chief Court recorded an order stating that as Mr. Forbes did not appear within the time specified in the proclamation and under sub-s. (7) of S. 88 of the Code of Criminal Procedure the property under attachment was at the disposal of the Provincial Government. As regards the two applications for contempt the Court made the following order:"These applications will therefore be adjourned sine die until Mr. Forbes appears or is arrested." on September 21,1944, the Court made an order withdrawing the prohibitory order it had earlier issued against, the Registrar and the Civil Judge, Lucknow.