Mrs. V. G. Paterson Vs. Mr. O. V.
Forbes & Ors  INSC 257 (13 September 1962)
13/09/1962 GUPTA, K.C. DAS
GUPTA, K.C. DAS KAPUR, J.L.
CITATION: 1963 AIR 692 1963 SCR Supl. (1) 40
Contempt of Court--Notice to
appeal--Failure--property attached--Handed over to
Government--Executrix--Application to restore--Power to attach--Code of
Criminal Procedure, 1898(Act V of 1898), ss. 87, 88 (7).
The appellant's mother died leaving a will
executed in favour of the appellant her sister and her brother. The appellant
applied for a probate and it was granted to her.
Subsequently in connection with a criminal
appeal before the Oudh Chief Court applications were filed by the counsel for
the State as well as 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 proceedings 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 forwarded
them to the Government. Thereafter Mr. Forbes died. After his death the
appellant made an application to the 41 Government for the return of the
properties. The Government refused to comply with this request and following an
abortive writ petition filed by the appellant before the High Court for the
issue of a writ of Mandamus 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 Court 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 Government.
Held, 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 behalf. The properties did not cease to be un-administered
assets of the estate of the appellant's mother merely because under the orders
of the Court the appellant who was the executrix handed over the properties to
the Magistrate. The properties therefore 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. Assuming that apart from the Criminal Procedure Code, the
Court had the power to attach the contemner'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 if the attachment order was valid and the Government came into
possession of the properties under the authority of law the courts attachment
order can only subsist so long as the contemner was alive and the rightful
owner of the property would be entitled to restoration of the property on the
contemmner's death. The Court will be failing in its duty if on discovering its
mistake of ordering an illegal- attachment and wrongful delivery to the
Government refused to correct the mistake.
Sukhdev Singh Sodhi v. The Chief Justice and
Judges of the, Pepsu High Court,  S.C.R. 454, followed.
42 Bodgar v. Comptoir d' Escomutedi Paris, 3
P. C. 465, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 170 of 1961.
Appeal by special leave from the judgment and
order dated August 28, 1961, of the Allahabad High Court (Lucknow Bench) at
Lucknow in Cr. Misc. Case No. 125 of 1961.
A.S. R. Chari, B. Parthasarathy, R. K. Garg,
S. C.Aggarwal, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the
G. C. Mathur and C. P. Lal, for respondent
1962. September 13. The judgment of the Court
was de- livered by DAS GUPTA, J.-This appeal by special leave is against an
order of the High Court at Allahabad rejecting on August 28, 1961 an
application made by the present appellant. For a proper appreciation of the
contention raised in the appeal it is necessary to set out in some detail the
facts which gave rise to her application.
It appears that on January 23, 1938 the
appellant's mother Mrs. A. E. Forbes executed a will leaving all her property
to her three children, viz., the appellant, Mrs. V. G. Paterson, Mrs. E. D.
Earle and Mr. 0. V. Forbes. The testatrix died on June 6, 1939 and this
appellant applied for a probate. The probate was granted on November 30, 1939.
On May, 4, 1943 when Criminal Appeal No. 9 of 1943 was being argued before a,
Single Judge of the Oudh Chief Court the Counsel for the State brought it to
the notice of the judge that Mr. 0. V. Forbes--brother of the present
appellant-had made in his application before the Trial Court and in other ways
certain aspersions against the conduct of the Trial Court which amounted to
contempt of Court. The 43 learned judge ordered the issue of notice against Mr.
O. V. Forbes in this matter. On May 6 1943 the present appellant also filed an
application for similar action under the Contempt of Courts Act against her
brother Mr. Forbes. On this also notice was issued to Mr. Forbes. As the
notices are not on record we do not know the actual terms of the notice; but it
does not appear to be disputed that by these notices Mr. Forbes was asked to
appear be ore the Oudh Chief Court to show cause why he should not be proceeded
against for contempt of court. Mr. Forbes however did not appear.
Some time after this a bailable warrant
appears to have been issued for the arrest of Mr. Forbes. The warrant was
returned unexecuted. A registered notice was thereafter issued under the orders
of the Court asking Mr. Forbes to attend the Oudh Chief Court on September 23,
1943. On that date also he did not appear. The learned judges of the Chief
Court being of opinion that Mr. Forbes was concealing himself only to avoid the
execution of the warrant, made the following order :- "Accordingly we
order that action be taken under section 87 of the- Code of Criminal Procedure
against Mr. Forbes and direct the issue of a written proclamation requiring him
to appear in this Court on the 25th November, 1943 at 10 a.m. This proclamation
will be issued in strict accordance with the requirements of section 87 Cr.
P.C. The proclamation will also be published once in the Pioneer of Lucknow and
the Daily Statesman of Calcutta. Under section 88 of the Code of Criminal
Procedure We further order attachment of the moveable and immoveable property
belonging to Mr. Forbes within the jurisdiction of this Court including :-
1. G.P. Notes and bonds for Rs.1,070,000/--
in the hands of the Registrar of this Court.
2. Rs. 12,250/- deposited in this Court in
the Personal Ledger, Trustees and Stake Hol- ders Fund;
3. G.P. Notes belonging to Mr. Forbes of the
face value of Rs. 55,000/- attached in Execution Case No. 16 of 1942 in the
Court of the Civil judge, Lucknow :
Dr. Hari Shanker Dube v. O. V. Forbes."
The proclamation was duly published and certain property was attached on the
basis that it was the property of Mr. 0. V. Forbes. On March 30, 1'944, the
Oudh Chief Court recorded an order stating that as Mr. Forbes did not appear
within the time specified in the proclamation and under sub-section (7) of s.
88 of the Code of Criminal Procedure the property under attachment was at the
disposal of the Provincial Government. As regards the two applications for
contempt the Court made the following order: ""These applications
will therefore be adjourned sine ded until Mr. Forbes appears or is
arrested." On September 21, 1944, the Court made an order withdrawing the
prohibitory order it had earlier issued against the Registrar and the Civil
It appears that after the Oudh Chief Court
made the order on March 30, 1944 stating that the attached property was at the
disposal of the Provincial Government under sub-section 7 of s. 88 of the Code
of Criminal Procedure the Provincial Government directed the City Magistrate to
take suitable action for the disposal of the attached property. It was to
facilitate such action by the City 'Magistrate that the prohibitory orders were
withdrawn. The Chief Court also made an order directing the Registrar and the Civil
judge to send the attached property to the City Magistrate for disposal
according to law. On the same date Mrs. Paterson was also directed to hand over
all the property in her possession which she may be 45 holding a custodian for
'Mr. O.V. Forbes to the City Magistrate.
It, appears that in August 1943 the City
Magistrate forwarded to the U.P. Government at Lucknow promissory notes of the
total value of Rs. 2,28,800/- said to be the attached property adding "these
G. P. Notes to the total value of Rs. 2,28,800/- have been ordered to be
forfeited to the U. P. Government by the Chief Court of Oudh under order dated
21st September 1944 in Criminal Miscellaneous Application- No. 47 of
1943". It was further stated that : "It is requested that necessary
action may be taken' by you to credit the sum under the head Fines and
Forfeitures Apparently this has been done.
Mr. Forbes died in 1953. On April 4. 1960 the
present appellant made an application to the U.P. Government in which she
stated that Mr. Forbes had died intestate and that his only heirs were his two
sifters, the appellant herself and her sister Mrs. E. D. Earle for whom she was
the trustee and prayed that as the Government was "'only in the position
of a receiver or a trustee of the property of Mr. Forbes this trusteeship
having ceased with Mr. Forbes death .the government should return the property
to the appellant and her sister". On September 3, 1960 the Government
rejected this prayer stating ""that this was a confiscated property
of Mr. Forbes and that on legal grounds her claim was Wholey untenable"
but added these, words : "'If however she has any special reasons for
invoking the compassion of Government `she may indicate the same to Government
and also furnish convincing evidence that Mr. Forbes actually has died and that
she is his sole heir or one of the heirs entitled to his assets." The
appellant pointed out to the Government in her letter dated September 12, 1960
that the property of Mr. Forbes has not been confiscated bet merely attached
and emphasised that the Government had no proprietary right to the attached
property but 46 could retain it only as a custodian or trustee for the time
being. She asked the Government to re-consider the whole situation. The reply
of Government, if any was apparently unsatisfactory and so on November 29, 1960
the appellant filed an application under Art. 226 of the Constitution in the
High Court at Allahabad in which after stating the several facts as regards the
attachment of the property and the action taken by the Government, she prayed
for a writ of certiorari to quash the Government's order of September 3,1960
and also for a writ of Mandamus ordering the Government to hand over the
Government promissory notes and cash money which had been attached. On March
29, 1961 the' High Court rejected this application. The High Court pointed out
that the applicant had not shown that the State Government had failed to carry
out any duty imposed by law and further that the order dated September 5, 1960
could not be said to be either judicial or a quasi-judicial order or even an
administrative order passed without jurisdiction.
It was then that' on May 1, 1961 the
appellant made to the High Court at Allahabad the application out of which the
present appeal has arisen.
By this application the appellant asked for
four relief :- (a) for an order terminating the contempt of court proceedings;
(b) for an order vacating the orders of attachment made by the Chief Court; (c)
for a direction on the Finance Secretary, U. P. Government, to restore the
attached property to the applicant as executrix of the estate of late Mrs. A.
E. Forbes. A copy of the writ petition dated the 29th November, 1960 in which
it had been mentioned that the proceedings under s. 87 and s. 88 of the Code of
Criminal Procedure were illegal because the code was applicable to proceedings
for contempt, was attached to the application. It was further stated in the
present application that in any case the attachment was void inasmuch as the
property that was attached 47 was at the time of attachment an undistributed
part of the estate of late Mrs. A. E. Forbes and so vested in this appellant as
By separate but concuring judgments Mr.
Justice Mulla and Mr. justice Nigam, who heard this application rejected the
applicant's prayer for vacating the order of attachment or for any direction to
the Finance Secretary, U.P. Government for restoration of the attached
property. Mr. Justice Mulla based his decision mainly on the point that the
appellant had herself acted in an unclean way, and she having been responsible
for getting warrants under sections 87 and 88 of the Code of Criminal Procedure
issued against Mr. Forbes it did not lie in her mouth to say now that the issue
of these processes was without jurisdiction and held that as she was
instrumental in getting the order now complained of passed, the discretionary
powers of the Court should not be exercised in her favour, especially, as she
had made the application after a long delay. The learned judge also expressed
the opinion that the judges of the Chief Court acted within their jurisdiction
in issuing processes under ss. 87 and 88 of the Code of Criminal Procedure that
this order was just and legal and the State had come into the custody of the
property under the due process of law. In the opinion Of the learned judge
"Mr. Forbes was willing to give away this property rather than, face a
prosecution for contempt of Court" and added "if he took up that
attitude it cannot be said by the heirs of Mr. Forbes that now the property
should be released in their favour".
Mr. Justice Nigam stressed the point that the
Court had attached the property belonging to ',Mr. Forbes and the present
appellant had handed over the property " treating it to be the property of
Mr. O.V. Forbes." According to this learned Judge if the property that was
attached did not belong to Mr. 0. V. Forbes this appellant should have
"'never handed over the property voluntarily". He was further 48 of
opinion that "the fact that she voluntarily handed a property over as
belonging to Mr. Forbes and actually suggested that this particular property be
attached clearly amounted to............... an admission of 'the ownership of
the property vesting in Mr. 0. V. Forbes and the property not being part of the
undistributed assets in the possession of '. Mrs. Peterson as executrix to Mrs.
A. E. Forbes." After holding that the Code of Criminal Procedure was not
directly learned Judge expressed the opinion that "the Bench could adopt
its own procedure for enforcing the attendance of the delinquent" and
added 'if it adopted the procedure prescribed in the Code of Criminal
Procedure, I can see no warrant for the contention that the procedure adopted
was wrong, improper and beyond the jurisdiction of the Court." Finally, he
held that it would be contrary to the interests of justice to review the order
"'after a lapse of about 18 years." The learned Judge also held that
the Court was no longer in possession of the attached property, the same having
been handed over to the City Magistrate for being passed on to the State
Government and could not therefore pass any orders in respect of the property.
He also expressed the view that prima facie it appeared to him that the
appellant's remedy, if any, was by a civil suit. The contempt proceedings were
however directed to be consigned to the record as abated.
The present appeal is directed against the
High Court's decision refusing to give the plaintiff the substantial relief
asked for in the application, viz., a direction on the Finance Secretary, U. P.
Government to restore the attached property to her.
The first question for consideration is
whether at the time of attachment the property formed . part of the un-administered
estate of Mrs. A. E. Forbes. If that was the correct legal position there could
not be in law attachment of that property as the property 49 of Mr. Forbes,
even if s. 87 and s.88 could be applied to secure the arrest of a person
alleged to have committed contempt. Mr. justice Mulla has not dealt with this
question. Mr.Justice Nigam has however formed the definite conclusion that the
property had vested in Mr. O.V. Forbes on the date of attachment and was not
part of the undistributed assets of Mrs. A. E. Forbes in the hand of the
executrix. In coming to this conclusion the learned Judge appears to have
relied on what he described as "'the fact that she (Mrs. Paterson)
voluntarily handed the property over as belonging to Mr. Forbes and actually
suggested that this particular property be attached". It is not clear from
the record of this case on what materials the learned judge thought that Mrs.
Paterson actually suggested that this particular property be attached. That she
really handed the property over appears to be correct. It appears reasonable to
think that she did so in obedience to the order of the Court. The matter was
stated thus by her in Para. 8 of the Writ Petition:- "8. That under the
orders of the Hon'ble Chief Court of Avadh the petitioner deposited with the
Registrar of that Court and finally with the City Magistrate, Lucknow, un-administered
assets consisting of Government Promissory Notes and each totalling Rupees
2,41,300/- detailed in the list attached to this petition which the then City
Magistrate, Sri S. G. Bose-Mullick was pleased to transfer the same to the
Finance Secretary to the U. P. Government, Lucknow, in August, 1948." In
the counter-affidavit filed on behalf of the State of O. P. in the writ
petition the statements made in this paragraph was admitted to be true. It appears
clear therefore that the petitioner made over the securities and cash-the
property which was attached-tinder the orders of the Chief Court of Oudh. It is
further to be borne in mind that the petitioner made the 50 definite statement
in this Para. 8 of the writ Petition that the property that was made over by
her formed part of the un-administered assets in her hand and the truth of this
statement was admitted by the State of U.P It is difficult to see how it can be
reasonably here that merely because the executrix banded over certain assets in
her hand to the Registrar and the City Magistrate in obedience to the orders of
the Chief Court thereby become vested in Mr. 0. V. Forbes. The property in the
hands of the executrix could become vested in Mr. O. V. Forbes only on her
handing over the same to him or to somebody on his behalf. Delivering the
property to the Registrar of the Court or to the City Magistrate could not
amount to handing over to the legatee.
For, obviously the Registrar of the Chief
Court or the City Magistrate, Lucknow, were not acting on behalf of the legatee
Mr. 0. V. Forbes but indeed acting against his interests. In our opinion, the
property did not cease to be un-administered assets of the estates of Mrs. A.
E. Forbes merely because under the orders of the Court this appellant, who was
the executrix, had the assets in her hand deposited with the Registrar or the
It must therefore be held that the property
which was attached was at the time of attachment not the property of Mr. O. V.
Forbes but formed part of the un-administered assets of Mrs. A. E. Forbes. This
property could not be legally attached in any proceedings for securing the
arrest of Mr. O. V. Forbes.
If what was attached did not form part of the
property of Mr. 0. V. Forbes, the order of attachment was invalid; and there
would be no scope for the operation of s. 88 (7) of the Code of Criminal
Procedure. Assuming that the property was of Mr. 0. V. Forbes, the question
arises whether it would, as a result of the attachment, be at the disposal of
51 Government under s.88 (7) of the Code of Criminal Procedure.
In Sukhdev Singh Sodhi v. The Chief Justice
and Judges of the Pepsu High Court(1) it was held that the Code of Criminal
Procedure does not apply to proceedings for contempt. On this authority it must
be held that the provisions of ss. 87 and 88 would also not be available to
securing 'the presence of a person who is alleged to have committed contempt.
It may be mentioned that on behalf of the
appellant, 'Mr. Chari had urged that even if the property was of Mr. 0. V. Forbes,
the a leged contemner, the Chief Court of Oudh had no power to attach it.
The High Court seems to think that the Chief
Court could choose any procedure it liked in the matter of punishing people for
contempt and so if it thought that it would not finally dispose of contempt
proceedings without the alleged contemner being present before it, it had the
inherent right of first issuing a warrant of arrest and next, if that was not
successful, by proclamation for his appearance and also by attachment of his
property. It seems to us that the Chief Court as a Court of record had the
right to punish persons for contempt and for the proper exercise of that power
it will have all other powers necessary and incidental to it.
It is however unnecessary to decide whether
such necessary and incidental powers include the power of arrest and of
attaching the alleged contemner's property in an attempt to secure his
presence. But assuming they do, we are of opinion that the Chief Court had
still no right to make over the attached property to Government. The right of
the Government to have any control over the attached property flows from the
provisions of s. 88 of the Criminal Procedure Code' As no attachment could
legally be made under s. 88, Criminal Procedure Code, in any proceeding for
contempt, the provisions of section 88 (7) of the Code of Criminal Procedure,
under which (1)  S.C.R. 454.
52 the property under attachment shall be at
the disposal of the State Government, if the proclaimed person does not appear
within the time prescribed in the proclamation cannot come into operation.
The position therefore is that Government is
in possession of the property that was attached under the orders of the Chief
Court; but the possession is, without any authority of law. The question then
arises : whether the Court can or should direct restoration of the property to
the rightful owner.
On behalf of the State of V., P. it is argued
that if the Government is in unlawful possession of the property the proper
remedy for the- rightful owner is to seek his remedy in a civil suit. In such a
suit he will have to pay the necessary court-fee, and it will be open to
Government to take the plea of limitation or such other defences as may be
available to it. This would ordinarily be a correct statement of the position
in law. In the present case, we have however the special circumstance that it
is by reason of an error on the part of the Chief Court that the property has
found its way to the State Government. Proceedings taken by the Chief Court
against Mr. 0. V. Forbes for alleged contempt of the Court must be taken to be
fully justified , as such action is necessary not only to uphold the dignity of
the Court but also to keep the administration of justice free from calumny.
When however we find that Court acted without jurisdiction in attaching the
property, and in any case, in ordering such property to be handed over to
Government we have to remember the other great principle which was stated many
years ago in these words by Cairns, L. C. in Rodger v. Comptoir D' Escompte Da
Paris(1): "One of the first and highest duties of all courts is to take
care that the act of the Court does no injury to any of the suitors...............
To say that we are aware, is not to say that whenever a court after wrongly
deciding a case between two parties discovers that the decision was wrong it
has the (1)  L. R. 3 P. C. 465,475.
53 inherent jurisdiction to re-open the
matter and to set matters right by altering the-decision. In many cases when
the Court has made a mistake the party who has suffered for that mistake is
without any remedy except what he can get in accordance with the provisions of
appeal, revision or review. As the courts are careful to point out again and
again, courts of law have the jurisdiction to decide wrongly as well as rightly
and the mere fact that the decision is wrong does not give a party a remedy.
Those considerations against the use of inherent jurisdiction to: correct
errors made by the courts in the exercise of its jurisdiction have, however, no
application to cases like the present. Here, the Court for the purpose of
exercising its jurisdiction in a matter of contempt took steps to attach certain
properties. This is not a case where there are conflicting claims between two
parties which have been decided by a judgment or order of the Court as between
the parties. The question really is whether the rightful owner of the property
would have it or the Government which has come into possession of the property
without being a claimant to it because of an erroneous order of the court
should retain it, if it is found that the order was wrong. In our opinion, this
question must be answered in favour of the rightful owner of the property.
We have assumed that the Court had the power
to attach the properties of the alleged contemner; but have held that it had no
power in law to make these over to the Government.
The attachment however could only subsist so long
as the contemner was alive. On the contemner's death the attachment could not
in law or equity continue. For, the purpose for which the attachment was made,
viz., to secure the presence of the allegead contemner could no longer be
achieved. Obviously, in such a case, the rightful owner of the property would
be entitled to restoration of the- property on the contemner's death. It would
not be proper for the Court to say then that it 54 cannot do anything in the
matter because the property has passed into the hands of the Government by the
Court's own mistakes. In our opinion, the court will be failing to perform its
primary function of doing justice if in such circumstances the court, on
discovering its mistake refuses to correct that mistake. As it is plain here
that it is the mistaken act of the Court which has put Government in possession
of the property even though without being a claimant to it, it is only right
and proper that the Court should correct that error and restore the property to
the person from whom it was wrongly taken.
We cannot see what legitimate grievance the
State of U. P. can have against this. It had no title to the attached property
and it would have had no control over it., except for the mistaken application
of the provisions of s. 88 (7) of the Code of Criminal Procedure. If now it is
found that the Court had made a mistake, first, in attaching the property in
question, and secondly, even apart from that, in directing the property to be
made over to Government, the Government cannot legitimately object to the Court
correcting this mistake. It would be deplorable if in circumstances like these
the Court would find itself helpless to correct its mistake and to order
restoration on an application being made to it in that behalf. In our opinion,
the applicant is entitled to an order for restoration of the attached property.
We accordingly allow the appeal, and order
that tile Finance Secretary, U. P. Government be directed to restore to this
appellant, the attached property which is in the possession of the Government.
In the peculiar circumstances of the case, we make no order as to costs.