KOLLIVENKATARATNAM Vs. COLLECTOR OF KISTNA

JUDGEMENT

(1.) The lower Court's order is clearly wrong and must be set aside. Section 386 of the Criminal Procedure Code prescribes two modes of recovering a fine imposed upon an offender. We are now concerned with the second method the one referred to in Clause (b) of that section. The Court imposing the fine may under that clause issue a warrant to the Collector of the District authorising him to realise the amount by execution either against the moveable or immoveable property or both of the defaulter. The section goes on to say -that such warrant shall be deemed to be a decree, the Collector to be the decree-holder and the nearest Civil Court the Court which passed the decree. Finally, the section enacts that all the provisions of the Civil Procedure Code as to execution of decrees shall apply to the proceeding.

(2.) The offender in this case is a member of a Hindu coparcenary of which the petitioner, his father is the manager. The attachment was of the standing crops and it was effected by seizure. The father has preferred a claim urging first, that his son had no right to the property at all and secondly, even granting that he had a right, that the attachment by seizure contravenes the provision of Order 21, Rule 47 of the Code. That provision runs as follows: Where the property to be attached consists of the share or interest of the judgment-debtor in moveable property belonging to him and another as co- owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

(3.) This rule provides that the attachment shall be effected by the issue of a prohibitory order for the obvious reason that a mere share or interest is incapable of actual seizure. Even assuming that the property attached was owned by the joint family, the defaulter's share was unascertained and it is only in virtue of the rule of Hindu Law as laid down by the Courts, that his undivided interest would pass to an alienee from Government, who in his turn for working out his rights would be obliged to institute a suit for partition.