Ganga Nath, J.:— This is an application in revision by Sumat Prasad against the order of Mr. Gual Saran. Magistrate first class, Meerut. One Damodar Prasad had a decree (No. 91 of 1931) for arrears of the theka money against the applicant, which was put in execution by the decree-holder in the court of the Sub-Divisional Officer, Sardhana, by attachment and sale of a share of a mahal which belonged to the judgment-debtor. In the course of the execution proceedings a receipt was filed and a statement was made by the applicant to show that the decree in execution had been satisfied. It was found by the Sub-Divisional Officer that the statement made by the applicant was false and the receipt filed by him was forged. Thereon the present complaint was made by him under section 195 of the Criminal Procedure Code. An objection was taken before the learned trial Magistrate that there being no valid complaint before him he had no jurisdiction to take cognizance of the complaint. The learned Magistrate has rejected the objection, holding that “This court has got the jurisdiction to try this case.” As already stated, execution of the decree was sought by attachment and sale of a share of a mahal of the judgment-debtor. Under the second schedule, list 2, of the Agra Tenancy Act No. III of 1926, serial number 13, the decree should have been sent to the Collector for execution, as the property against which the execution was applied for was a share of a mahal. The Sub-Divisional Officer, Sardhana had no jurisdiction to entertain the execution proceedings. On the 20th of May, 1939, when the matter was brought to the notice of Sh. Muhammad Azizullah, Assistant Collector, first class, Meerut, he passed the following order: “The execution proceedings were conducted in the court of Mr. Usman Ali Khan (late) Suh-Divisional Officer, Sardhana, who had no powers to attach the property as he was not empowered to exercise the powers of a Collector under serial No. 13, list II, of schedule II, Tenancy Act. The execution proceedings were accordingly null and void. The execution proceedings shall start afresh in the proper court. The proceedings shall be struck off the file.”
If during the course of these proceedings, which were ultra vires and illegal, any offence under section 193 or section 471 of the Indian Penal Code was committed by the applicant, it cannot be said that it was committed in or in relation to, or by a party to, any judicial proceedings. This view is fully supported by Babu Ram v. King-Emperor(1). There a suit had been dismissed ex parte as against the defendant whose application for re-hearing was granted and the suit re-heard, in the course of which re-hearing the plaintiff made a certain false statement and the Munsif ordered his prosecution under section 476 of the Criminal Procedure Code. It was held that the proceedings of the learned Munsif were ultra vires and illegal inasmuch as under order IX, rule 13 of the Civil Procedure Code the Munsif could not set aside the decree and grant a re-hearing, and therefore the conviction for perjury could not be sustained. It was observed there: “The Munsif's proceedings therefore were ultra vires and illegal and therefore Babu Ram cannot be held to have committed perjury in the course of a judicial proceeding. It was not a proceeding in which evidence could be legally taken. This is the principle which was applied in the case of Queen-Empress v. Makhni(2) and also in Emperor v. Abdul Rahman(3).”
It is therefore ordered that the application be allowed and the complaint made by the, Sub-Divisional Officer be dismissed.