IBRAHIM HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is the accused in CC No. 334/2004 in file of the Judicial First Class Magistrate Court, Taliparamba, has sought for getting quashed the proceedings initiated against him for the offence under S.379 IPC. The theft alleged is that he cut and removed trees worth Rs.15,000/- from the property extending 1 acre and 75 cents in RS No. 17/1A which was attached by the Tahsildar, Taliparamba and of which he is the owner. The attachment was effected in pursuance of the execution of MC 87/91 filed by his wife under S.125 CrPC. and in execution of the order that he shall pay at the rate of Rs.500/- to his four minor children from the date of the petition, i.e. from 1997. The arrears due amounted to Rs.39,000/-. That attachment was effected in December 2002 as per the order of the Tahsildar under the Revenue Recovery Act. Unaware of the order of attachment, the petitioner had agreed to sell some of the standing timber in the said property to one Mathukutty in December 2002. The above person cut and removed certain Maruthu trees from the property. Thereupon the wife of the petitioner filed a complaint to the Sub Inspector of Police alleging that he had cut and removed the trees worth approximately Rs.15,000/- from the property attached. Hence, the Sub Inspector has registered a crime against the petitioner as Crime No.185/2003 under S.447 and 379 IPC on the ground that the petitioner had trespassed into the property attached by the Tahsildar and has committed theft of timber worth Rs.15,000/-. The petitioner was arrested and remanded to judicial custody and thereafter released on bail. The trees cut down was recovered and has been kept in the custody of the court as thondi articles in the police station. Subsequently the petitioner remitted the entire maintenance arrears and the family Court, Kannur as per order dated 19/04/2004 has recalled the distress warrant. The Tahsildar has thereafter issued order under S.42 of the Revenue Recovery Act withdrawing the attachment vide order dated 20/04/2004.

(2.) It is submitted that the petitioner is the owner and in possession of the property for which demand notice under S.44 has been issued and order under attachment is passed under S.36 of the Revenue Recovery Act. The demand notice or attachment effected would not create any charge or interest in the land to the person for whom the attachment is attachment under the provisions of the Code of Civil Procedure. The only consequence is under S.44 of the Revenue Recovery Act that any engagement or transfer entered into by the defaulter with any one after the service of the written demand on him shall not be binding upon the Government. Moreover S.85 of the Revenue Recovery Act is self contained for punishing any violation for the fraudulent conveyancing of the property attached. Further more, the offence of theft consists in the dishonest taking of any movable property out of the possession of the person without his consent in order to cause wrongful gain to himself and wrongful loss to the other. The petitioner has sought for setting aside the proceedings as well as for getting released the wooden logs kept in custody as thondi articles. Counsel has relied on the decision reported in Chandrasekharan Pillai v. The Popular Bank Ltd., 1968 KHC 341 : ILR 1968 (1) Ker. 661 wherein this Court has elucidated the implications of an order of attachment under the Revenue Recovery Act. It has been held that here is nothing in the Travancore-Cochin Revenue Recovery Act to show that an attachment effected thereunder creates any interest in the land. All that is done by S.26 is to give notice that, unless the arrear be paid within the date mentioned, the land will be brought to sale for recovery of the arrear. It would thus appear that an attachment under the Revenue Recovery Act no more creates a charge or other interest in the land than an attachment under the provisions of the Civil Procedure Code.

(3.) In Thiru Venkita Reddiar v. Noordeen, 1977 KHC 302 : ILR 1977 (2) Ker. 399 : AIR 1978 Ker. 11 : 1977 KLN SN 118 : 1977 KLT 877 this Court has explained concept and consequences of attachment. It has been held in the above cited decision relying on precedents that an attachment is an order prohibiting and restraining the defendant from transferring or charging the attached property by sale, gift or otherwise and all persons from so receiving it and S.64 of the Code provides that private transfer or delivery of property attached shall be void against all claims enforceable under the attachment. Its effect therefore is only to prevent alienation and not to confer title by way of charge or otherwise on the attaching decree-holder. Further it is only aimed at private alienations. It does not prevent involuntary alienations. On this aspect of the matter there is no difference between attachment in execution of a decree and an attachment before judgment. Order XXXVIII, Rule 10, CPC, makes this position clear. That rule provides that the attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit, nor bar any person holding decree against the defendant from applying for sale of the property attached. Such being the effect of an attachment, whether before or after decree, it does not bar a court sale in execution of another decree and with the court sale the interest of the judgment-debtor passes to the auction-purchaser and there is nothing left to be sold later at the instance of another decree-holder who may have attached the property earlier. The purpose of the attachment is solely for the purpose of protecting the attaching creditor's right to bring to sale in execution the right, title and interest in the attached property of the judgment debtor and there is no reason for holding that it continued to affect the attached property in anyway when the attached property no longer continues to be the property of the judgment-debtor. The auction-purchaser takes the property free from attachment. The consequence no doubt to an earlier attaching creditor is very serious, but his rights are sufficiently safeguarded in such a situation by entitling him to a rateable distribution of the proceeds of the sale. If this were not so complications will arise between an earlier attaching creditor and a subsequent attaching creditor. If the sale was under a private alienation with the earlier sale there is nothing left with the transferor to transfer subsequently to another. In the same manner the prior sale in pursuance of an attachment will prevail over a subsequent sale even if the latter sale was in pursuance of an earlier attachment. With the court sale all attachments subsisting on the property will fall to the ground.