Case No.:

AC-CR-168- 1959

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Law —Penal Code. s. 185 fraudulent disposal of attained property, six months after execution with no notice under rule 6

Accused disposed of property against which there had been an order of attachment and execution. At the time of disposal more than six months had elapsed since execution, and no notice had been sent under Civil Justice Ordinance. Order XV, r. 6 Accused  was convicted under Penal Code, s. 185 and argued his conviction was illegal sine any sale at that time would have been void.
Held: Although no notice has been sent under rule 6 six months after execution, property remains under order of the court, and sale by the judgment debtor violates penal Code. s. 185.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT V. HASSAN EL TOM BILLAL

AC-CR-168- 1959

Advocate: Mamoun Sinada…………… for the accused

A,M. Abu Rannat C .J. August 29, 1959 :—The facts found by the court are these’: the accused, who was treasurer of Deim El Medina Co-operative Society. signed. on January 2, 19ç8, an undertaking that the property attached by the court bailiff valued at £5104830 should be kept under disposal of court. The property in question was attached in an execution against the Co-operative Society. On September 21, 1958 when the bailiff. Who wanted  to sell the attached property in pursuance of an order from the court executing the decree, discovered that some of the attached property was disposed of, the accused was charged with an offence under Penal Code, s. 185 .

In my view the evidence produced by the prosecution leaves no doubt in my mind that the conviction of the accused under Penal Code, s.185 was correct.

In his application for revision Advocate Mamoun Sinada raised a legal point on behalf of accused. Advocate Sinada contends that as no notice was given to the judgment debtors under Civil Justice Ordinance, Order XV, r. 6, within six months, the sale by the bailiff of the attached property disposed of by accused would have been illegal, and consequently the con viction of accused was wrong.

The point as to whether failure to give notice would render the sale void is controversial. Some of the Indian High Courts held that failure to give notice under rule 6 (1) renders the sale absolutely void for want of jurisdiction and others held the opposite.

I feel that the Madras High Court decision was right. That court held that where property is attached on an application for execution, no notice having been given to the judgment-debtor of the application for sale, though the latter application is made more than a year (in our case six months) after the previous application for execution, the sale by bailiff was legal.

For these reasons I reaffirm the decision of the Province Judge who confirmed the decision of the police magistrate, and see no reason to intervene with these decisions.