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PETITIONER: Mrs. V. G. PATERSON

       Vs.

RESPONDENT: Mr. O. V. FORBES & OTHERS

DATE OF JUDGMENT: 13/09/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1963 AIR  692            1963 SCR  Supl. (1)  40

ACT: 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).

HEADNOTE: 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

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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 unadministered 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, [1954] S.C.R. 454, followed. 42 Bodgar  v.  Comptoir  d’ Escomute di Paris,  3  P.  C.  465, referred to.

JUDGMENT: 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 appellant. G.   C. Mathur and C. P. Lal, for respondent No. 2. 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  complicated. 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

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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.               44               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

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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  judge, Lucknow. 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

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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 relilfs  :- (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 executrix. 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

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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 delinqent"   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 unadministered 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,  unadministered               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.

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             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 unadministered  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 inte- rests.   In  our opinion, the property did not cease  to  be unadministered  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 City Magistrate. 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  unadministered 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 behelf 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

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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) [1954] 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 arc 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)  [1871] 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

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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. Appeal allowed.  55