9911796707
TMI Blog1960 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... n the District Court, Kottayam, by attachment and sale of their properties. The appellants filed objections and the two points raised by them in the Court below were: (1) that the warrant was issued without jurisdiction, and (2) that the properties sought to be attached did not belong to them. These objections were overruled by the Additional District Judge, Kottayam, and this appeal has been preferred from the order allowing execution as prayed for. 2.. The point pressed in appeal is that the warrant which was sought to be executed was issued without jurisdiction. Execution was applied for in this case under section 386 of the Code of Criminal Procedure which provides as follows: "386. (1) Whenever an offender has been sentenced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, and all the provisions of that Code as to execution of decrees shall apply accordingly: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender". It is contended on behalf of the appellants that while the "dealer" was the firm, the prosecution was taken only against the partners and as such the proceedings are invalid. This is a case in which the assessment as well as the conviction of the appellants have become final. It cannot be said that the Magistrate had no jurisdiction to convict the appellants or pass an order under section 19(h) of the General Sales Tax Act. Even otherwise, a firm has no separate existence apart from the partners and all the partners were parties to the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be recovered by executing the warrant in the Civil Court but not arrears of tax. Our attention was drawn to the decision in Mytheen Kunju v. State of Kerala[1959] 10 S.T.C. 417; 1959 K.L.T. 698; 1959 K.L.J. 826., where the distinction between fine and arrears of tax has been stated. The point which arose in that case was whether the accused could be sentenced to imprisonment for non-payment of arrears of tax and it was held that he could not be. The proviso to section 386(3) makes it clear that no such warrant for recovery of tax can be executed by the arrest or detention of the offender. The question in this case is whether the procedure prescribed for recovery of fine by execution of the warrant in the Civil Court can be allowed. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
