BECHAN MAHTON Vs. EMPEROR

JUDGEMENT

(1.) THE facts found by the Courts below are that two civil Court peons armed with a warrant for the attachment of crops in execution of a money decree were resisted by a number of persons led by the present petitioners; the drummer and others of the party were assaulted and the peons had to withdraw without effectively making the attachment. THE objection taken to the conviction of the petitioners under Secs.186 and 147, I.P.C., is that it is said the warrant in the hands of the peons was no lawful warrant but was an illegal process issued without jurisdiction. THErefore it is said resistance or obstruction to the attachment was not an offence under Section 186, and an assembly with the common object of obstructing such an illegal attachment was not an unlawful assembly and its members should not be convicted of rioting. THE execution in which the warrant was instituted more than a year beyond the disposal of the last previous execution of the same decree and therefore in the ordinary course a notice under Order 21, Rule 22, Clause (1) should have been issued before taking further proceedings by way of arrest or attachment of property. THEre is of course in Rule 22. Clause (2), a, power to issue any process in execution of a decree without issuing a notice under Order 21, Rule 22, Clause (1), if, for reasons to be recorded, the Court considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. In fact, the Munsif had issued a notice under Order 21, Rule 22, Clause (1) and it had been served on Bechan, the principal judgment- debtor, on 26 November 1934, by affixing it at his house. That notice directed the judgment-debtors to show cause against execution of the decree within 15th December 1934. THE attempt made by the peons to attach the crops took place on 27 November 1934, and Mr. Baldeo Sahay has contended that no such step could lawfully be taken until after the expiry of the period fixed for the accused to show cause against execution.

(2.) IT is of course settled law that if there was no jurisdiction to issue a warrant, resistance to the execution of such an illegal warrant is no offence. Bu apart from referring to the rules of Schedule 1, Civil P.C., on which he relied, Mr. Baldeo Sahay was unable to point to any decision in which it has been held that merely by reason of a failure to record reasons for issuing process at once without waiting for a notice under Order 21, Rule 22, Clause (1), the warrant must be deemed to be without jurisdiction. In fact the only authority cited at the hearing, which is directly in point, is Rajanikanta Saha V/s. Emperor 1931 Cal 443 and this is directly against the contention of Mr. Baldeo Sahay. The decision lays stress on the fact that the warrant was within the jurisdiction of the Munsif to make and that the mere fact that reasons ought to have been recorded cannot make the act of the Court entirely invalid solely because of the omission to give reasons. Following that decision I think it is not shown that the warrant was illegal or that the petitioners have been wrongly convicted. The rule will be discharged.