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The transfer of jewels and other materials used in religious worship will not be upheld on the ground that such articles are, by all systems of law, and by the Hindu law almost more emphatically than any other, absolutely extra commercium. M. H. C., VII. 210. This does not apply to decrees obtained against the sebait of an idol upon his bonds for the repayment of moneys alleg ed therein to have been borrowed for the service of the idol and the expenses of the temple, when such decrees direct that the debt should be paid by the sebait personally, or else realized from the profits of the dewuttur land. Such decrees are binding against the successors of sebaits, especially when they are untainted by fraud or collusion, and rest upon issues properly framed and determined upon. Notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is competent for a sebait to incur debts and borrow money for the service of the idol and preservation of its property, to the extent to which there is an existing necessity for so doing; his power in that respect being analagous to that possessed by the manager for an infant heir. sunno Kumari Debia v. Golab Chand Baboo, L. R., I. A., 145. B. L. R., XI, 332.

Pro

In the Cen. Prov. the ryot's occupation of his holding is not a property over which he has a disposing power which he may exercise (independent of the landlord's consent) by sale for his own benefit. There may be exceptional circumstances where he may do so, either independently of the landlord's consent or by such consent, specially acquired, but as a rule Courts should proceed upon the understanding noted above. C. P. C. O., V. 1877.

(m) Under this are included plough bullocks, gear used in irrigating from wells or rivers, and spinning-wheels of women, whether of the agricultural or non-agricultural class, Panj. C. O., 1. 49; C. P.C. O., I. 106.

(n) The Panj. C. O., I. 49 would exempt from sale houses necessary for the performance of agricultural operations on the same principle as plough bullocks, are exempted, in all cases where the sale of the land or the tenure belongfng to the agriculturist is not contemplated. (0) Under this is included the right to perform the service of an idol. Drobo Misser v. Srincebash Misser, S. W. R. XIV. 409; see also Jugger N. R. C. v. K. P. S., ib. VII. 266.

(p) As the stipends of the Mysore family, Hajee Muhammad Kuzulbash v. Shazada M. Buseerooddeen, ib. VII. 169.

With reference to this head compare Act XXIII., 1871, secs. 11, 12, which specially provides that no pensions, granted or continued by Government on political considerations, on account of past services, present infirmities, or as compassionate allowance, and no money due or to become due on such account shall be liable to seizure, attachment or sequestration by any Court at the instance of any creditor or any demand,

(g) Any officer to whom an order for such attachment is sent is justified in comply ing with it only when the notice was issued when the salary was lying in deposit in his office. Cen. Pro. C. O., I. 507. The Privy Council, in the case Syad Tafazal Hossein Khan v. Rughoo Nath Prashad, M. I. A., XIV. 40, point out that if a creditor desires to have a security on the receipts of a salary as they accrue, that can be effected only by contract with the debtor and arrangement with him, and not by attachment by the act of the Court. An existing debt, though payable at a future day, may be attached, whilst a salary, wages, or money claim accruing due may

not.

The pay of a military officer cannot be attached in the hand of the Pay-master where no provision for its stoppage has been made in the decree. Bansi Lal, v. Col. Mercer, N-W. P. 1875, p. 331.

It should be remembered that in all cases the Mutiny-Act must be read with, and, where it varies, controls this Code. Sec. 99 lays down that it shall be competent for any Civil Court, or Court of Small Causes, or for any Military Court of Requests held in lieu thereof under the authority of this section, upon finding or awarding any debt or damage, (over Rs. 400) either to award execution thereof generally, or to direct specially that the whole or any part thereof shall be stopped and paid over to the plaintiff out of any part not exceeding one-half of any pay or allowance, or out of any other public money which may respectively be coming to the defendant in the current or any future month or months, or to direct the sum to be so paid by instalments. In regard to awards of execution, general Civil Courts and Courts of Small Causes shall proceed in accordance with the rules of procedure for such Courts in India. Opinion of the AdvocateGeneral, Calcutta, upon this section is that an order may be made by a Civil Court directing the Regimental Pay-master to stop any portion of a military officer's pay or allowance not exceeding one half coming to him, &c. When pay is passed on the 1st of the month, and not issued or drawn out, such pay is considered to be pay coming to the defendant in the current month, and conse

quently the half, or other portion of it not exceeding one-half, directed by an order of the Civil Court, dated the 2nd of the month, may be stopped. The Regimental l'ay-master should be careful to see that the attachment is not one under the provisions of Act X., 1877, but a direction to him in the terms of sec. 99 of the Mutiny Act; and I think that, as a precautionary measure, whenever the Regimental Paymaster makes any deduction from an officer's salary under an order of a Civil Court, passed in pursuance of the 99th section of the Mutiny Act, he should report the same to the Judge of the Civil Court issuing the order.

A decree against the civil pay of a noncommissioned officer employed in the civil department, and residing beyond military cantonments, is in conformity with law. Cohen v. Macarthy, S. W. R., XIV. 231.

Where execution is directed against a sergeant's civil pay, and a part of his military pay is erroneously remitted, it should be refunded to his superior.

ib, 441.

(r) Money payable to sirdars as the wages of coolies over whom they are sirdars, does not constitute a debt to the sirdars, but debts to the coolies themselves, even where a sirdar is entitled, by custom or contract, to have the wages of coolies paid to him, in order that he may deduct the amounts due to him by the coolies for food supplied. It therefore cannot be attached in execution of a decree against the sirdar. Sufferan v. Gopal and another, ib. X. 149, (s) Arrears of maintenance can be attached. Hymobutty Dabee Chaudhrani v. K. M. D. Chaudhrain, ib. VIII. 41; and in view of an instalment becoming due, a Court can make an order for non-payment by the party and non-receipt by the debtor. Mohessur Dass v. Beer Protap Sahee, ib. XV. 188; and Chakauri Misser v. Musst. Namoodah Kooer, ib. XXIV. 5. Miscellaneous ruling under this section. A decree in respect of debts of a mem

ber of a Hindu family incurred in his lifetime on his own account can only be executed against property passing to his widows in their own right. Bikramajeet Lal v. Musst. Phoolbas Koer, ib. XIV. 340. On a reference from the Inspector-General of Police, the Jud. Commr., Cen. Prov. (C. O., I. 464) decided that it was lawful to attach the horse of a mounted constable provided such horse is actually his property.

The Chief Commr., Cen. Prov., (C. O., I. 454,) held that proprietary rights conferred at the settlement are liable to attach

ment in execution of a decree for debts of the proprietor's ancestors, even though they died before the settlement officer had an opportunity to come to a decision about the proprietary rights of such owners.

The case was one in which the owners had been in possession, and the settlement officer traced the rights as vesting in their successors.

Arrears of a yeomiah pension due to the estate of a deceased yeomiahdar, or which have accidentally accumulated, are not subject, as assets of the deceased, to attachment in satisfaction of a decree of a Civil Court obtained against the representative of the yeomiahdar, M. H. C., V. 371.

A husband who puts his wife into the position of being a true owner of the estate, and allows her to deal with the world as the true owner, deprives himself of any right to set up or rely on a benami title. Nidhee Singh v. Bisonauth Dass. S. W. R., XXIV. 79 ; ib. XV. 19. (t) When the property to be attached consists of debts, a written notice of attachment is necessary. Until the debtor receives such notice, he is bound to pay the amount of his debt to the creditor whose right to receive it has been declared by a decree of Court, and it is no part of the duty of the debtor to make enquiries whether his creditor is or is not entitled to receive the money. Thakoor Dass Singh v. Luchmeeput Doogor, ib., VII. 10.

In Megji Hansraj v. Ramji Joita, Bom. H. C., O. J., VIII, 169, held that a creditor who attached a debt due to his judgment-debtor is not in the same position as an assignee for the value of such debt without notice of a prior assignment; but in respect to prior assignment stands in no better position than his judgment-debtor. An assignment prior to attachment that is good against the judgment-debtor is also, as a general rule, good against his attaching creditor. Notice to the holder of funds is not necessary to complete, as against the assignor, an equitable assignment of such funds.

(u) A claim for damages for injury to certain goods belonging to plaintiff, but attached by the defendant in execution of a decree held by him against the plaintiff, pending such attachment, through the alleged negligence of the defendant, is a matter which should be determined by a separate suit, and not by the Court executing the decree under Luchwhich the goods were attached. man Doss v. Heera Lall, N, W.-P., 1871, 187.

*See p. 173.

†S. 262 n.

*Act XVIII

1859, S. 19.

(a) in the case of the debt, the creditor from recovering the debt, and the debtor from*(t) making payment thereof until the further order of the Court:

(b) in the case of the† share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon:

(c) in the case of the other moveable property, except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

A copy of such order shall be fixed up in some conspicuous part of the Court-house, and another copy of the same shall be sent in the case of the debt to the debtor, in the case of the share to the proper officer of the company or corporation, and in the case of the other moveable property (except as aforesaid) to the person in possession of the same.

A debtor prohibited under clause (a) of this section may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

No attachment under this section shall remain in force for more than six months, at the end of which time, if the judgment-debtor has not obeyed the decree, the property attached may be sold, and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and pay the balance, if any, to the judgmentdebtor on his application.

defendant.

M. 269. (233) If the property be moveable property Attachment of moveable in the possession of the judgmentproperty in possession of debtor, other than the property mentioned in the first proviso to section 266, the attachment shall be made by actual seizure, (u) and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof: (v)

Provided that when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody will exceed its value, the proper officer may sell it at once.

maintenance of attached

live-stock.

The local Government may from time to time make rules Power to make rules for for the maintenance and custody, while under attachment, of livestock and other moveable property, and the officer attaching property under this section shall, notwithstanding the provisions of the former part of this section, act in accordance with such rules.

M, 270. (238) If the property be at negotiable instrument not in deposit in a Court, the Attachment of negotiable attachment shall be made by actual seizure, and the instrument shall

instruments.

Without proof of mala fides the judgmentcreditor is responsible in damages to any person whose property he wrongfully causes to be attached in execution of his decree. In S. W. R., VII. 355, the decision is too tersely expressed to be considered as laying down a principle, and contrary views have been expressed in Sudder Dewany Adalat, N. W. P., 9th July 1860. Gauri Shunker v. Pitumber Kund, and in B. L. R., III. A. C. 413.

See also Raynor v. Sungheer Singh, N.-W. P. 1873, 211. The Bombay High Court, in Vana Sagamia Thji v. Hata Dipaji, Bom. H. C., XI. 46, held that there is not any universal rule that a judgment-creditor is, or that he is not, liable in a suit for a wrongful seizure, or for injury to the goods while under seizure. His liability must depend upon the circumstances of the case, i. e. upon the fact whether the wrongful seizure or the injury is the result of his own conduct. For instance, if the judgment-creditor personally, or by his authorized agent (e.g. his pleader), apply, under sec. 236, for the attachment of property which is especially designated in that application, and if the Court grant its warrant for the seizure of that particular property, and the officer of the Court execute the warrant, and the property be not that of the judgment-debtor, the judgmentcreditor would certainly be liable for that wrongful seizure, and the officer of the Court could justify under the warrant, and would not be liable so long as he kept within the duty expressly prescribed for him by it. But if the officer of the Court, without any suggestion to that effect from the judgment-creditor or his agent, beyond a general direction to execute the warrant, were to seize property not belonging to the judgment-debtor, the judgmentcreditor would not be responsible. (v) In an action for damages for a malicious

attachment it must be shown that the defendant has acted with malice as well as without reasonable and probable cause. The circumstances that the facts stated in an application for attachment were true, and that nothing was concealed which the Court ought to have known, is evidence that the applicant had reasonable cause upon those facts for the application. Chaudhri Sheoraj Singh v、 Dwarka Dass. N.-W. P. 1872, 42,

Where A. seizes property in attachment of a decree which had been obtained by his own judgment-debtor, and there is nothing to show that the decree was sold to B., and A. is not proved to have acted maliciously or without probable cause, A. is not liable to B. in a suit for damages,

When,moreover, the seizure is made under the order of the Court, the judgment-creditor is not liable for what is done under the Court's order. Joykalee Dossee v. the Representative of Chandmalla, S. W. R.,

IX. 133.

In Thawa Singh v. Kabdas Roy, B. L. R., V. 386, a decree-holder in execution attached and seized certain property which belonged to the judgment-debtor, in partnership with another person, who alone at the time of attachment was in actual possession Held that such property was the subject of attachment in execution of the decree against the one partner, but such attachment must be limited to his share, and the attachment should be by prohibitory order, not by actual manual seizure. (w) A nazir or sheriff cannot, under a writ of attachment, break open a defendant's dwelling-house to execute a civil process against his person or goods, if the onter door is closed and locked, even when he finds that the defendant has absconded to evade such execution.

The privilege extends to a man's dwellinghouse or out-house, or any office annexed to the dwelling-house, but not to a buildding standing at a distance from the dwelling-house, and not forming parcel of it. Bai Kuvar v. Venidas Ganga Ram, Bom. H. C. R., VIII. 127.

A nazir authorized to execute a warrant by attachment of moveable property, has power to remove locks put by the judgment-debtor on the doors of godowns, or other places where his property is stored, and put his own locks thereon, for the purpose of attachment and safe custody of the property. Sodamini Dosiv.Jugeswar Sur, B. L. R., V. App. 29.

The proposition that a man whose possession was unlawfully invaded by a wrongful attachment ought to have given effect to that invasion, because it was made under colour of legal process, by removing the lock of his own store-house is untenable; and though the plaintiff might have received permission to use his own property, he was neither bound to accept the permission so accorded to him, nor, if he had accepted it, would he have lost his right of action, and he was entitled, at the very least, to a judgment for nominal damages. If it be important in India to check any tendency to resist the execution of legal process, it is hardly less important to maintain the principle that they who misuse a legal process are responsible for the consequence. Madhan Mohan Dass v. G. Dass, M. I A., X. 563. (a) A karkoon executing a warant of attachment, and finding the property to be attached already under attachment of the revenue authorities, should refrain from

be brought into Court and held subject to the further orders of the Court.

Seizure of property in

house.

*See p. 175.

Seizure of property in zanánás.

M. 271. (233) If the person executing any process under this Code directing or authorizing seizure of moveable property has gained access to a house or other building, he may unfasten and open the door*(w) of any room in which he has reason to believe any such property to be: Provided that if the room be in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to her that she is at liberty to withdraw; and after allowing a reasonable time for such woman to withdraw, and giving her every reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

Governinent officer.

Proviso.

M. 272. (237) If the property be deposited*(x) in, or Attachment of property be in the custody of, any Court or deposited in Court or with public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice issues: Provided that if such property is deposited in, or is in the custody of, a Court, any question of title or priority(y) arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment, or otherwise, shall be determined by such Court.(z) M. 273. If the property be a decree for money passed by the Court which passed the decree sought to be executed, the attachment shall be made by an order of the Court directing the proceeds of the former decree to be applied in satisfaction of the latter decree.

Attachment of decree for

money.

If the property be a decree for money passed by any other Court, the attachment shall be made by a notice in writing to such Court under the hand of the Judge of the Court which passed the decree sought to be 'executed, requesting the former Court to stay the execution of its decree until such notice is cancelled by the Court from which it was sent. The Court receiving such notice shall stay execution accordingly, unless and until

(a) the Court which passed the decree sought to be executed cancels the notice, or

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