BADRI PRASAD Vs. TEJ SINGH

JUDGEMENT

(1.) Tej Singh and Baldeo Dass were summoned as witnesses in a Civil suit. It appears that they did not attend in answer to the summons with the result that first a warrant of arrest was issued to enforce their attendance and when that did not suffice, a fine was imposed upon them in their absence, their property was attached and an order was passed to sell the same for the purpose of satisfying the fine imposed and the costs incurred in consequence of the attachment. Although the Court ordered the attachment of both the immovable and movable property, only immovable property was attached. The amount of immovable property attached was far in excess of the fine imposed and the costs incurred. The property was put up to sale and purchased by the appellant for Rs. 250. There is no dispute that the property attached is of far greater value than the amount paid by the appellant at the sale. The learned counsel, who appears for the appellant, boldly and frankly allowed that his client was in the position of a fortunate purchaser who has at an auction sale purchased property at a price much below its real value. The fact that the property attached consists of 399 bighas, 6 biswas of land bearing a jama of Rs. 597-12-10, is quite enough to show that Rs. 250 was an absurdly low price. The Court, before which the sale officer submitted his report, refused to accept the sale as a sale. In a very careful judgment, that Court has given good reasons for the position it toot. It ordered Tej Singh to pay in Rs. 100 the fine imposed, and all the costs of the attachment and sale within 15 days, from the date of its order. That sum was duly paid in and the Court considered that as far as Tej Singh was concerned, he had purged himself of any contempt in which he may have stood.

(2.) In appeal before us it is urged that the Court had no jurisdiction to set aside the sale which according to the law had become final. The contention is that neither Section 311 of the old Code nor Order XXI, Rule 90, of the new Code applied to this case.

(3.) We think that there is considerable force in this contention. The result then is that the Civil P. C., previous to the present Code, appears to have intended that any order passed under Section 170 of that Code should not be open to appeal. That section contains a special provision that if a person whose attendance was required pays into Court the fine and costs, then the Court shall order the property to be released from attachment. The very existence of this provision shows that the Court may, before the sale becomes final, accept from the person guilty of contempt the costs and fine and release the property intended for sale from attachment. It may be said that it is somewhat straining the language of the section to hold that if a sale officer has put up the property for sale and a purchaser has come forward, still the Court is empowered to order the release of property from attachment. We do not think there is much force in this contention. It appears to us to be a novel idea that the action of a ministerial officer should have such finality. It is for Court to say whether the action of its ministerial officer amounts to a sale by putting its confirmation upon that act. That stage was never reached in the present case. The order passed by the Court below was an order under Section 170 of the Code of 1882 which governs the procedure in the present case and no appeal is provided from that order.