Adami, J.:— (after stating the facts as set out above, proceeded as follows): The provisions of Order XXI, rule 24(2), are mandatory and an attachment made under a writ which does not bear the seal of the Court, as required by that rule, is an invalid and illegal attachment, as has been held by Mullick and Thornhill, JJ., in the case of Khidir Bux v. King Emperor. The defect is not a mere technical one; the presence of the seal of the Court to give authority to the writ is an obviously imperative safeguard.
The writ being thus invalid and the attachment illegal, if resistance had been made to its execution at the time the cattle were being attached, there can, I think, be no question that the petitioner, Badri, would be held to be free from liability for his action as long as no excessive force was used [Khidir Bux v. Emperor, Sheikh Nasur v. Emperor, Arjun Suie v. King Emperor, Mohini Mohan Banerji v. King Emperor, Debi Singh v. Queen Empress and Tannakilal Mandar v. King Emperor].
The question to be decided here is whether, when an illegal attachment has been made in the absence of the judgment-debtor and the property has been taken into possession by the Civil Court peon and has been in his possession for some time, the judgment-debtor commits an offence when he obstructs the peon and takes back his property. The learned Sessions Judge has held that in such circumstances no right of private defence of property still exists.
The learned Assistant Government Advocate follows this same line of argument. He contends that in attaching the cattle under a writ which he believed to be valid, the Civil Court peon was not committing an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which was an attempt to commit any of those offences, and therefore the right of private defence of property, as described and defined in section 97 of the Indian Penal Code, did not subsist, and he further contends that, even if ordinarily there would be such right of private defence, the provisions of section 99 of the same Code would prevent the petitioners pleading that right because the peon was acting in good faith under colour of his office, though owing to the defect in the writ his action may not have been strictly justifiable by law. He explains that the effect of section 99 was not taken into consideration in the cases on which the petitioners rely.
In the case of Bisu Haldar v. Emperor Stephen and Cox, JJ., and in that of Shaikh Moinuddin v. The King Emperor Jwala Prasad, J., did consider the effect of the words “not strictly justifiable by law” and held that, where the warrant is altogether invalid and illegal the words will not take away the right of private defence.
In the present case the question of private defence of property hardly arises. The petitioner came upon the peon taking his cattle along the road and claimed them. The peon showed him a writ which was of no force because it bore no seal of the Court (though probably Badri did not notice this). The peon not being able to justify his possession of the cattle, the petitioner committed no offence in taking them. There was no assault on the peon, who gave up the cattle when he saw the identifier being assaulted. It was fortunate for the petitioners that the writ proved to be an invalid one, they can have had no knowledge of this, but in their defence they were entitled to rely on its invalidity.
The cases of Reg. v. Boyle, Reg. v. Williams and Reg. v. Knight show that under the law of England the petitioners would not in the circumstances of this case be held liable to punishment.
As to the effect of section 99 of the Indian Penal Code a clear explanation has been given by Sir John Edge, C.J and Burkitt, J., in the case of Queen Empress v. Dalip. If in the present case the petitioners had assaulted or caused grievous hurt to the peon, under section 99 they would not have been able to plead the right of private defence of property as a justification because the peon was acting in good faith under colour of his office, though his attachment of the cattle may not have been justifiable by law.
After careful consideration I am of opinion that in the circumstances of this case, the conviction of the petitioners under section 186 should not be upheld, and I would set aside the conviction and sentences and acquit them.
Bucknill, J.:— I agree.
Convictions set aside.