B A ANTHONIMUTHU PILLAI Vs. VKNAGANATHA AIYAR

JUDGEMENT

(1.) One K. A. Anthonimuthu Pillai was the owner of two houses Nos. 60 and 61 in Vaniarvilai Street, Tuticorin. The municipal tax for house No. 61 was in arrears. The owner K. A. Arithonimuthu Pillai was prosecuted. The Bench Court convicted and fined him and also directed him to pay up the arrears. The arrears were not paid and the Bench Court then issued a warrant to attach the movables of K.A. Anthonimuthu Pillai. The warrant proved infructuous. The Court then issued a second warrant through the Sub-Inspector of Police to attach all the movables found in the house No. 61. That house was then occupied by the defaulter's divided brother B. A. Anthonimuthu Pillai. Attachment was effected by the head constable to whom the warrant was entrusted for execution by the Sub-Inspector. When the warrant was returned at one time saying that the house was locked, the following order was passed by the Magistrates: The warrant should be executed properly. It is no use saying that the house is under and that the accused is absent from the town. Steps should be taken to attach all the movable properties found inside the house of the accused and the V. M.'s attakshi obtained for doing so. The warrant should be returned for execution on or before the 10 June, 1936 without fail. (Sd.) N.M. Roche Victoria, 21-5-1936, President in charge. Thereupon the head constable took the V. M., and proceeded to execute the warrant. On that occasion they" sought the help of the 1st defendant, the tax superintendent of the municipality and he was asked by the municipal authorities to render help to the constable. The 1st defendant pointed out the house and latter attested the search list which was prepared by the head constable. The present suit was laid against four defendants, the first being the tax superintendent, the second the head constable, the third the village munsif and the fourth, the Municipal Council of Tuticorin. The plaintiff's case is that there is enmity between him and the 1 defendant and that he got the others to execute the warrant by attaching all the properties of the plaintiff, B. A. Anthonimuthu Pillai including movables which are not attachable under Section 60 of the Civil Procedure Code and under the provisions of the District Municipalities Act which embody the prohibition contained in Section 60, Civil Procedure Code. Both the lower Courts dismissed the suit and the appellant argues that the dismissal is wrong for the reason that his properties were attached for the arrears due by his brother K. Anthonimuthu Pillai. He says that he was not the defaulter and that the president could only issue a warrant for the attachment of the movables of the defaulter and that if his movables were attached, he was entitled to damages on the ground of wrongful attachment. He also says that even wearing apparel, cooking vessels and bedding were attached all of which are not attachable and that the whole thing was engineered by the first defendant.

(2.) Both the lower Courts have found that the plaintiff has not proved that there was any enmity between the appellant and the first respondent, the tax superintendent and the appellant's case that he was at the bottom of the whole thing is not proved. What has been found against the first respondent is that he pointed out the house No. 61 to the head constable and that too on being asked to do so. Evidence to the effect that there was a protest against the attachment of the articles on the ground that they belonged to B.A. Anthonimuthu Pillai and that the first respondent asked the head constable to go on with his attachment notwithstanding the fact that the movables did not belong to the defaulter is disbelieved. On these findings there was no case against the first respondent and the suit against him was rightly dismissed. He was not a party to the attachment. He did not point out the articles to be attached and he took no part in it. He showde the house no doubt but it is not the case of the appellant that by merely showing the house, he was guilty of any illegal conduct. The subsequent attestation of the search list does not carry the case further. I therefore agree with the lower Courts in holding that the first respondent was not liable for any damages for the wrongful attachment, if any, of the goods of the appellant.

(3.) The fourth respondent, the Municipal Council, must also be exonerated because there is nothing to show that the fourth respondent sought the attachment of the movables of the appellant. They complained, as they were entitled to do, to the Magistrate that the arrears were not paid. Under Rule 30 (1) of Schedule IV of the District Municipalities Act, if the amount due on account of any tax is not paid within fifteen days, the executive authority may recover by distraint the amount due on account of the tax together with the warrant fee and the distraint fee. Clause (2) says: If for any reason the distraint, or a sufficient distraint, of the defaulter's property is impracticable, the executive authority may prosecute the defaulter before the Magistrate. Under Rule 36 (1): Every person who is prosecuted under Sub-rule (2) of Rule 30, shall be liable, on proof to the satisfaction of the Magistrate that he wilfully omitted to pay the amount due by him or that he wilfully prevented distraint or a sufficient distraint, to pay a fine not exceeding twice the amount which may be due by him on account of the tax and the warrant fee. Then Clause (2) of Rule 36 says: Whenever any person is convicted of an offence under Sub-rule (1), the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the Municipal Council the amounts, if any, due under the heads specified in Clauses (a) and (6) of Sub-rule (1).