LexTEEKA AND OTHERS versus STATE OF UTTAR PRADESH
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• ,'< •. . .,t 1 S.C.R. SUPREME COURT REPORTS 75 the offices of "Peshimam", "Khatib" and "Mujavar" and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court. The trial court has found that the duties of those offices could be per- formed through deputies. The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted. We do not think that we would be justified in allow- ing the contesting defendants to argue this question in this appeal. In any event, if the income was being distributed amongst the four families, the plaintiffs and defendant No. 2 claiming under Fakruddin would, by virtue of the provisions of the Shariat Act, be en- titled to receive that income. There is nothing on the record to suggest that the right to receive the income is conditional upon the performance of the duties of the offices of "Peshimam", "Khatib" and "Mujavar". In that view of the case, this appeal fails and is dismissed with costs. Appeal dismissed. TEEKA AND OTHERS ' v. STATE OF UTTAR PRADESH (K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) Criminal Trial-Dishonest removal of property-Attachment of livestock-Custody of Sapurdar-Forcible removal by owner- Owner, if acts dishonestly-Wrongful gain and wrongful loss- Indian P~n~l Code, I86o (XLV of r86o), ss. 23, 24, I49· 424- Code of Civil Procedure, r908 (V of r908), 0. zr, R, rr6 (Allaha- bad). In execution of a decree the Amin attached, inter a!ia, two buffaloes from the house of the judgment debtor and entrusted them to the custody of a sapurdar. As the sapurdar had no accommodation in his house for keeping the buffaloes he kept them for the night in the enclosure of the decree-holder with his permission. Early next morning the appellants armed with z96z C. llfohammed Yunus v. Syed Unissa 6' Others Shah J. February r5, I96I Teeka <£, Ors. v. State of Uttar Pradesh 76 SUPREME COURT REPORTS [1962] lathies, went to the enclosure of the decree-holder and began to untie the two buffaloes; the decree-holder, his son and nephew protested whereupon they and another person, who tried to intervene, were beaten by the appellant with lathies and the two buffaloes were taken away. Afterwards appellant No. I made a claim petition before the executing court and that court held that the two buffaloes belonged to him. The appellants were convicted of offences under ss. r47, 452, 424, 325/149 and 323/r49 Indian Penal Code. They challenged their convictions on the grounds: (i) that the custody of the decree-holder over the buffaloes was illegal as neither the amin had any authority to give them in the custody of the sapurdar nor had the sapurdar any power to keep them in the custody of the decree-holder, (ii) that the appellants had entered the enclosure of the decree-holder only to recover their buffaloes and had not acted dishonestly. Held, that the appellants were rightly convicted. The decree-holder's possession of the buffaloes was as a bailee of the sapurdar. Order 2r, Rule 43 read with R. u6 (framed by the Allahabad High Court) empowered the amin to keep the attach- ed buffaloes in the custody of a sapurdar. The sapurdar could, for convenience or necessity, keep them with a third person as bailee and such third person could be the decree-holder also. Attachment involved a change of possession from the judgment- debtor to the Court; and whoever was entrusted with the posses- sion held it on behalf of the Court until the attachment was raised. So long as the attachment lasted or the claim of a per- son for the thing attached was not allowed, that person was not legally entitled to get possession of the thing attached. If he unlawfully took possession of that thing he caused "wrongful gain" to himself and "wrongful loss" to the Court. Rex v. Thomas Knight, (1908) 25 T.LR. 87, Sarsar Singh v. Emperor, (1934) 35 Cr.LJ. 1307 and Emperor v. Gurdial, (r933) I.LR. 55 All. rr9, distinguished. Emperor v. Ghasi, (r930) I.LR. 52 All. 214, disapproved. Dalganjan v. State, A.LR. r956 AIL 630, State v. Rama, (1956) I.L.R. 6 Raj. 772 and Emperor v. Kamla Pat, (1926) I.LR. 48 All. 368, applied. CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 79 and 89 of 1959. Appeals by special leave from the judgment and order dated May 6, 1959, of the Allahabad High Court in Criminal Appeal No. 1224 of
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