PALANI KUDUMBAN Vs. DINAKARAN

JUDGEMENT

(1.) THE matter comes up before us upon an order made at the time of admission by Ganapatia PUlai, J. , who thought that the facts might involve a determination of the conflict between two decisions of this Court, both of single Judges, namely, Sidhyayan v. Chinnamathayan 1936 Mad WN Cri 36 and Ponnusami Padayachi v. Emperor 1941 Mad WN Cri 79. As we shall presently show, once the facts of this matter are fully set forth, it becomes abundantly clear that the resolution of this apparent conflict is really not necessary for purposes of this case. Apart from this, we have now had the advantage of arguments in full by learned Counsel for the revision petitioners and the learned Public Pre-secutor, and we find that the apparent conflict is easily reconcilable. We shall first set forth the facts of the matter.

(2.) THE facts, as represented by learned Counsel for the revision petitioners are as follows. P. W. 2 in this case filed a suit: against the first accused (judgment-debtor) for money and obtained a decree on the foot of the claim. The decree-holder, P. W. 2 or his son (P. W. 1) as authorised on his behalf, filed an execution petition for attachment of the moveables of the judgment-debtor. An officer of the Court (P. W. 6) distrained two sheep belonging to the first accused, and. entrusted those sheep to P. W. 1 on execution of a bond by the latter. Admittedly, this took place on 15-9-1960, and it appears to have been in accordance with the procedure prescribed in Order XXI Rule 43 (1) (a) Civil Procedure Code.

(3.) THAT evening, it is alleged, the first accused and four others (the five revision petitioners) came there, and after a show of force or the use of actual force, the record not being very clear on the point, obtained the release of the sheep and took them away. P. W. I then filed a criminal complaint against the five accused for theft of the animals Under Section 379 Indian Penal Code.