Order.- This is a revision against the order of the Sixth Presidency Magistrate Saidapet, Madras, in M.C. No. 559 of 1960. There is no doubt that there were arrears of house-tax due in respect of house No. 2, III Main Road, Gandhi Nagar. Under Rules 20 and 21 of Schedule IV of the City Municipalities Act, this tax can be recovered by means of distraint. Under sub-rule (2) of Rule 21 if for any reason the distraint or a sufficient distraint of the defaulter’s property is impracticable, the Commissioner may prosecute the defaulter before a Magistrate. In this case it is the case of the Corporation that the distraint became impracticable and, therefore, they had resorted to this remedy. It is contended before me that it has not been established that the distraint became impracticable in this case. Learned counsel, Mr. G.K. Subramaniam, appearing for the Peitioner, has pointed out how on the evidence of P.Ws. 2 and 3 the Tax Collector and Bailiff, it cannot be said that the distraint became impracticable. P.W.2 in his chief-examination has stated that he went to the house with the Bailiff, P.W.3 in the case. He stated that there were no articles in the house except a trunk containing clothes. He was subjected to a very severe cross-examination and in the cross-examination he stated that he did not open the trunk and that he did not know the contents of the trunk. He further stated that there was furniture inside the house but he did not know to whom they belonged. He also stated that he did not enquire where the articles of the accused were kept. He added that the accused was occupying only two rooms in the front portion. It was also elicited in the reexamination that there were no articles in the said rooms. P.W.3 deposed that the accused was living in the room attached to the kitchen and he found cooking utensils and an old bench. He stated that they never went to the front room. There are thus contradictory statements between P.W.2 and P.W.3 as to the room to which they went for the purpose of distraint. The Bailiff does not speak of the trunk containing clothes as being available for distraint. He stated that they never went to the front room. There are thus contradictory statements between P.W.2 and P.W.3 as to the room to which they went for the purpose of distraint. The Bailiff does not speak of the trunk containing clothes as being available for distraint. If it had been established clearly either that there was nothing in the rooms occupied by the accused which were worth distraining, that is, by mentioning the articles which they noticed and they were not worth distraining for the amount involved, or if P.Ws.2 and 3 had stated that the rooms occupied by the accused were locked and they had no access to them, and, therefore, the distraint became impracticable, then one could understand that the distraint really became impracticable. But the evidence of P.Ws.2 and 3 leaves the impression that probably neither of them went to the premises in question and tried to find out whether there were any articles in the rooms belonging to the accused for the purpose of distraint. In those circumstances I cannot say that under sub-rule (2) of Rule 21 it has been established that the distraint became impracticable. It is only when the distraint became impracticable that a prosecution can be launched against the accused. I set aside the conviction and sentence. I do not acquit the accused but only order that the fine, if paid, be refunded. Nor do I order a retrial in this case. It is open to the Corporation to distrain the goods in accordance with law, i.e., as provided in the Rules. If it is ultimately found that the distraint became impracticable, the Corporation can again launch a prosecution against the accused for recovery of the amount. There can be no plea of autrefois acquit under section 403 of the Code of Criminal Procedure, because I am not acquitting the accused in this case, only the conviction and sentence are set aside; and I leave it open for another prosecution if the distraint becomes impracticable. R.M. ----- Conviction and sentence set aside.