MRS. V.G. PATERSON versus MR. O. V. FORBES & OTHERS

Citation: [1963] SUPP. 1 S.C.R. 40 · Decided: 13-09-1962 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

1962 
Parmanand 
v. 
Ganpatrao 
Cajendragadkar, J. 
1962 
s~ptember 13. 
40 
SUPREME COURT REPORTS [1963] SUPP. 
s. 33 of the Bengal Act. Therefore, we are not inclined 
to accept Mr. Masodkar's argument that the defect 
in the sale on which the appellants rely would not 
render the sale invalid. 
The result is, the appeal is allowed, the decree 
passed by the High Court is set aside and the appella-
nts' suit decreed. There would be no order as to cost 
throughout. 
A ppe.al allowed. 
Mrs. V. G. PATERSON 
v. 
Mr. 0. V. FORBES & OTHERS 
(J. L. KAPUR, K. c. DAS GUPTA AND RAGHUBAR 
DAYAL, JJ.) 
C'onternpt of C!ourt-.1.Votice to appenl-Failure-Prope.rly 
attached-Handed over to Govern1nent-Executri:r-Applicat-ian 
to restore-Power to attach-Code 
of Criminal Procedure, 
1898(Act V of 1898), 88. 81, 88 
(7). 
The appellant's mother died leaving a will executed in 
favour of the appellant her sister and her brother. The appel-
•' 
!ant applied for a probate and it was granted to her. Subse-
quently in connection . with a criminal appeal before the Oudh 
Chief Court applications were filed by the counsel for the State 
as well a; the appellant for proceeding against her brother one 
Mr. Forbes under the Contempt of Courts Act. On the failure 
of Mr. Forbes to appear in pursuance of notices issued by the 
Court, a proclamation under s.87 of Code of Criminal Procedure 
was published and certain properties were attached under s.88 of 
the Code of Criminal Procedure. These properties were assumed 
to belong to Mr. Forbes and they were under the custody of the 
appellant. Finding that Mr. Forbes did not even then appear 
the Court recorded an order that the attached properties were 
at the disposal of the Government and the contempt proceed-
ings would be adjourned sine die until Mr. Forbes appears or is 
arrested. On directions from the Court the appellant handed 
over the properties to the City Magistrate who in turn forwar-
ded them to the Government. Thereafter Mr. Forbes died. 
After his death the appellant made 
an application to the 
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• 
1 S.C.R. 
SUPREME COURT REPORTS. 
41 
Government for the return of the properties. The Government 
refused to comply with this request and following an abortive 
wdt petition filed by the appellant before the High Court for 
the issue of a writ of ... l!andarnus against the Government, she 
filed before the High Court an application for a direction on 
the Secretary to the U. P. Government to restore the attached 
property. The High Crnrt dismissed the application and the 
appellant appealed to the Supreme Court by way of special 
leave . 
The main questions which were raised in the appeal were 
whether at the time of the attachment the properties formed 
part of the administered estate of the appellant's mother, 
whether the properties could be legally attached for securing 
the arrest of Mr. Forbes and whether the provisions of the Code 
of Criminal Procedure applied to contempt proceedings. 
A 
further question raised was whether the property attached under 
s. 88(7) of the Code of Criminal Procedure would be at the 
disposal of the Govermnent. 
He/J, that the properties in the hands of the executrix 
could become vested in Mr. Forbes only on her handing over 
the same to him or to somebody on his b eha!f. The properties 
did not cease to be unadministered assets of the estate of the 
appellant's mother merely because under the orders of the 
Court the appellant who was the executrix hande<l over the 
properties to the Magistrate. The properties 
therefGrc could 
not be legally attached in any proceeding for securing the 
arrest of Mr. Forbes. The order of attachment being invalid 
there is no question of the application of s. 88(7) of the Code 
of Criminal Procedure and the properties being at the disposal 
of the Government. 
Even if the properties belonged to Mr. 
Forbes the provisions of ss. 87 and 88 of the Criminal Procedure 
would not be available for securing the presence of a person 
who is alleged to have committed contempt. Assumii<g that 
apart from the Criminal Procedure Code, the Court had the power 
to attach the contc1:nner's property it had no right to make over 
the attached 
property to the Government. The possession 
of the properties by the Government is therefore without the 
authority of law. It was further held that even ;f the attach-
ment order was valid and the Govcrn1nent carne into possession 
of the properties under the authority of la\V the court

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