JUDGMENT
1. Under Section 338, Criminal P.C., I transmit the record of the case noted below to be laid before the High Court with the following report:
2. On the 5th December 1927 a peon of the civil Court (P.W. 1) went to execute a warrant of attachment of moveable property, Ex. 1, issued by the Munsif, 2nd ‘Court, Khulna, against one Ahmed Sheik, judgment-debtor, who intimates his liability to pay the decretal amount. On this the peon attached four bullocks, two carts, a bedstead and a chair on the identification of P.W. 2, gomsata of the decree-holder. The peon and his party then removed the attached property to the river ghat some 7-8 rasis from the house of the judgment-debtor. Then Ahmed Sheik, Adiladdi Sheik, Kushai Sheik, Gani Sheik, the present petitioners, and some other persons came to the Ghat, one of them pushed Nani Gopal, P.W. 2 and they then took away all the property which had been attached. The peon in due course made a complaint to the Munsif, the proceedings were instituted in the criminal Court, as a result of which the four petitioners named above have been convicted under Sections 183 and 147, I.P.C. and sentenced to pay a fine of Rs. 50 each or in default to suffer li months rigorous imprisonment each.
3. At the time of the trial a number of defences were set up on behalf of the accused. In the first place the fact of attachment was denied in toto, and it was stated that P.W. 2 and some other men came to the house of the judgment-debtor before dawn, and were opposed and went away without effecting any attachment, it was also contended that the attachment made by the peon was not a legal attachment and that the peon had no legal justification for removing the attached property from the ban of the judgment-debtor, and hence no offences were committed in taking away the property from his custody. The lower Court has disbelieved the story of the accused regarding attempt at the stealthy removal before dawn, and has also held that the attachment effected by the peon was legal. I agree with the findings on these matters. I have no doubt from the evidence adduced that the facts as stated by the witnesses for the prosecution are true and that the property was removed to the river ghat after attachment and taken away from there forcibly by the accused party, including the present petitioners. As regards the fact of actual seizure in pursuance of the attachment, the evidence of the P. Ws. shows clearly that the peon actually touched some of the property attached, and distinctly pointed out the rest of the property stating that he was attaching it under the warrant. The evidence also proves satisfactorily that all the property was removed to the river ghat, and these facts are sufficient to prove attachment by actual seizure within the meaning of Order 21, Rule 43, Civil P.C. I do not think, however, that the removal of the property from the bari of the judgment-debtor was a legal removal land it is for this reason that I consider it necessary to refer this case to the High Court and to recommend that the convictions under Sections 183 and 147, I.P.C., should be set aside.
4. The lower Court has held that the removal of the attached property was not in accordance with the Rules issued by the Hon’ble High Court for the attachment of the moveable property. These rules are to be found under Rule 93, p. 31, Ch. 1 of the High Court’s General Rules and Circular orders (Civil), The first rule framed under main Rule 93 is that:
the attaching officer shall give the debtor, or, in his absence any present adult member of his family, the option of having the attached property kept on his premises or in some other place in the village, on condition that a suitable place for its safe custody be provided by him.
5. In the present case no evidence has been offered on behalf of the prosecution to show that any such option was given to the judgment-debtor who admittedly was present, and indeed the evidence indicates that such option was not given. In such circumstances it must, I think, he held that the removal of the property from the bari was illegal. It hat been argued on behalf of the opposite party at the hearing of this motion that the rules framed under main Rule 93 cannot be treated as having the force of law, and that the particular rule in question is inconsistent with the provisions of Order 21, Rule 43. The provisions of the latter order and rule are that the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and it does seem that there is some inconsistency between this and the rule quoted above. I think, however, that the rules framed under Rule 93 of the High Court Rules and Circular orders must be treated as framed by the High Court under the provisions of Sections 122 and 128, Civil P.C., and as superseding the directions of Order 21, Rule 43. It appears that the rules framed under Rule 93 were originally framed by the Local Government under the old Code of the Civil Procedure and the ruling reported in re Reference under Stamp Act [1914] 37 Mad. 17 indicates that those rules must be treated as still in force until new rules are framed under the new Code of Civil Procedure of 1908. Rule 93 has recently been amended by C.O. No. 7 of 1926 which directed that for the words “the rules framed by the Local Government” the words “the following rules” should be substituted. This amendment seems to me to indicate that “the following rules” under Rule 93 have been adopted by the High Court and that they must be treated as having the force of law. It has been pointed out on behalf of the opposite party that in the instruction given in the beginning of vol. 1 of the High Court’s General Rules and Circular orders (Civil) it is said that all rules’ having the force of law are cow issued as “Rules” i.e., every separate rule or set of rules is issued under the title “Rule No.”, while general instructions for the guidance of judicial officers are ordinarily issued as “circular orders” under the title “Circular Order No”. It is further pointed out that the Rule 93 and the amendment thereunder have been issued as circular orders, and consequently that they cannot be treated as having the force of law. There seems to be some force in this contention, but as the rules under Rule 93 were originally framed by the Local Government and published in the Calcutta Gazette, I think that they must be held to have had the force of law, and that the rules as they at present exist cannot be consider to have any less force. It this View is correct than it seems to me that the removal of the property by the civil Court peon, without leaving any option to the judgment-debtor to provide safe custody for the property must be considered as illegal, and consequently that the subsequent taking back of the property by the present petitioners cannot be held to constitute any offence under Sections 183 and 147, I.P.C., and Section 99, I.P.C., would not operate as a bar to the exercise of the right of private defence of the property.
6. I cannot say that on the merits the present petitioners have much claim to consideration, in view of the highhanded way in which they acted and of the main defence set up, which I., believe to be false. As the question involved seems, however, one of some importance I consider it necessary to refer the matter to the Hon’ble High Court and to recommend that if my view is correct that the rules framed under Rule 93 must be regarded as having the force of law, the convictions and sentences of the accused in this case should be set aside.
7. We have caused enquiries to be made and it appears that Rule 93 on p. 31, Ch. 1 of the High Court’s General Rules and Circular Orders (Civil), as now amended, was made by the High Court and sanctioned by the government of India under Section 107 of the Government of India Act. It would, therefore, follow that this rule has now the force of law. In that view of the matter, we think that the reasons given by the learned Sessions Judge of Khulna in his letter of reference are sound and we therefore accept the Reference, set aside the conviction and the sentences referred to therein and direct that the fines, if paid be refunded.
