JUDGMENT C. R. Thakur, J.— This appeal has been filed by the State against the acquittal of Durga and three others by the Magistrate. First Class, Bilaspur, in a case under sections 353/392/34, I. P. C. instituted at the instance of Brij Lal Bailiff. 2. Mst. Ajudhya had obtained an order of maintenance under the provisions of section 488, Cr. P. C. against her husband Charanji from the Panchayat. When the husband did not make payment of the amount of maintenance, the wife moved an application for execution before the Sub-Divisional Judge, who ordered the attachment of the property of the husband and in consequence thereof a buffalo was alleged to have been attached. When Brij Lal Bailiff went to auction the buffalo, it is alleged that Durga and others forcibly took away the buffalo and assaulted the bailiff, while he was discharging his official duty, and, thereupon he made a report and a case was initiated against the respondents under the provisions of sections 392/J53/34,1. P. C. The respondents pleaded not guilty. The defence of Durga was that the buffalo belonged to him. He was, no doubt, the brother of Charanji, the husband of Mst. Ajudhya, but the buffalo was his. He had also filed objections in the executing Court which objections, it is stated, had been allowed and the buffalo was released. But it was only after the accused had been acquitted in the criminal case by the Court on 31st May, 1971 and against which order, the State has come up in appeal, 3. The learned counsel for the respondents have taken up the objection that the order of attachment was illegal and as such any attachment made under the order was also without jurisdiction and if the accused had in any way obstructed the bailiff in putting the buffalo to auction after taking it from the possession of the alleged Sapurdar then the same shall not amount to any offence when the order itself is illegal under which the attachment was made. 4. It is an admitted case that the maintenance application was filed by Mst. Ajudhya under section 488 before the Panchayat and the Panchayat granted an amount of Rs. 20 per month in her favour and feeling aggrieved against that she went in revision to the Sub Divisional Judge, who dismissed the revision. 4. It is an admitted case that the maintenance application was filed by Mst. Ajudhya under section 488 before the Panchayat and the Panchayat granted an amount of Rs. 20 per month in her favour and feeling aggrieved against that she went in revision to the Sub Divisional Judge, who dismissed the revision. Therefore, it is quite evident that it was the order of the Panchayat which was sought to be executed by Mst. Ajudhya. It is also not disputed that an order of maintenance under section 488 is to be enforced in the manner as provided under sub-section (3) of section 488 of the Old Code. (The case was instituted before the enforcement of the Criminal Procedure Code of 1974). Under sub-section (3) if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines. Chapter XXVIII of the Old Code of Criminal Procedure relates to the execution of, the orders and section 386 thereof under that Chapter provides for the recovery of the fine levied. According to this section, whenever an offender has been sentenced to pay a fine the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may— (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender ; (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. Therefore, if an order was passed by the Magistrate then he should have proceeded in pursuance of the provisions of section 386 (1) (b), that is, he should have issued a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. But it is the admitted case of the parties that the order of maintenance was passed by the Panchayat, and, there is a special provision in the Himachal Pradesh Panchayat Raj Act, 1952 which was applicable at the relevant time, and, which provision is contained in section 97 of the Act, which lays down the procedure as to how a decree or order passed by a Nyaya Panchayat shall be executed. It says that a decree or order passed by a Nyaya Panchayat shall be executed in such manner as may be prescribed by the Nyaya Panchayat, It further, says that if the defendants property is situated outside the jurisdiction of the Nyaya Panchayat passing such order of decree, it may transfer the decree or order for execution in the prescribed manner to the Nayaya Panchayat within whose jurisdiction the property may be situated and if there be no such Nayaya Panchayat then to the Court of the Sub-Divisional Judge within whose jurisdiction it may be situated. So it means that the Nyaya Panchayat has been given the powers to execute a decree or order passed by it in the manner as prescribed under the rules, The rule which provides for execution of the decree or order is Rule 165 of the Panchayat Rules of Himachal Pradesh, 1953. This rule says that the decree or order holder may, after the passing of the decree or order put in an application for its execution on payment of the same fee as is provided for the institution of the original suit, case or proceedings before the Nyaya Panchayat which passed the decree or order, and the same shall be included in the costs. Sub-rule (2) of Rule 165 lays down that the Nyaya Panchayat shall issue a notice to the opposite party to pay up the decretal amount or comply with the order within 30 days or such further time not exceeding three months as it may deem fit to allow after the notice is served. If the amount is not paid order or not complied with within the period specified, the decree or order shall be sent to the Sub-Divisional Judge, as the case may be, for execution as provided in sub-section (2) of section 97 of the Act. If the amount is not paid order or not complied with within the period specified, the decree or order shall be sent to the Sub-Divisional Judge, as the case may be, for execution as provided in sub-section (2) of section 97 of the Act. Therefore, it follows from the reading of these two provisions that any order, passed by the Nyaya Panchayat, is to be executed by the Nyaya Panchayat itself on an application moved by the holder of the decree or order passed in his favour and it is only when the Panchayat finds it difficult to execute a decree or order as provided in sub-section (2) of section 97 of the aforesaid Act read with rule 165 (2) of the Rules that the order or decree has got to be forwarded to the Sub-Divisional Judge, who shall then execute the decree or order as if it is passed by him. There is nothing on the record to show if Mst. Ajudhya, who had obtained an order of maintenance from the Nyaya Panchayat had ever moved application before the Panchayat for execution of its order as provided under section 97 (2) read with Rule 165 (1). Mst. Ajudhya, as is evident, straightaway moved an application for execution before the Sub-Divisional Judge probably under an impression that she had gone in revision against the order of the Panchayat to the Sub-Divisional Judge, who had dismissed her application thereby confirming the order of the Panchayat for maintenance at the rate of Rs. 20 per month. Therefore, in our opinion, it would follow that the Magistrate or the Sub-Divisional Judge had no jurisdiction to issue a warrant of attachment and even if the Magistrate had passed the order, then also, he could only issue a warrant of attachment of the property to the Collector as is provided under clause (b) of sub-section (1) of section 386 because any order of maintenance as provided under sub-section (3) of section 488 is to be executed in the manner as is provided under clause (b) of sub-section (1) of section 386 which is the mode provided for the recovery of the fine. If the Magistrate had not sent the same to the Collector then obviously the order would be illegal. The warrant of attachment was to be executed by the Nyaya Panchayat. If the Magistrate had not sent the same to the Collector then obviously the order would be illegal. The warrant of attachment was to be executed by the Nyaya Panchayat. But no such application appears to have been made nor it is stated at the Bar by the counsel for the State that any such application was filed before the Nyaya Panchayat. If there was no such application for execution filed before the Nyaya Panchyat then the Sub-Divisional Judge could not suo moto entertain any application for execution of the decree or order passed by the Nyaya Panchayat. Therefore, his order is wholly illegal and without jurisdiction and is, therefore, not sustainable. If the attachment was illegal then there cannot be said to be any offence to have been committed by Durga and others, if they resisted the auction of the buffalo, which had been attached under an illegal order. 5. In Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340, it had been laid down by the Supreme Court that:— "It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to passed any decree, and such a defect cannot be cured even by consent of parties." Therefore, this attachment is passed by a person having no jurisdiction in the matter. Therefore, if any obstruction was caused and the buffalo was taken away forcibly then Durga and others had not committed any offence. 6. In Pasuvathia Pillai v. Emperor, AIR 1928 Mad 624, it has been held that if there is an arrest on an illegal warrant then the assault by the person on the officer arresting him does not amount to any offence within the meaning of section 353, I.P.C. 7. Shri H. K. Paul appearing on behalf of the State has on the basis of the State of U. P. v. Lakhmi insurance Co. Ltd., New Delhi and others, AIR 1961 Allahabad 5 8, contended that the order passed by the Sub-Divisional Judge is perfectly correct. Shri H. K. Paul appearing on behalf of the State has on the basis of the State of U. P. v. Lakhmi insurance Co. Ltd., New Delhi and others, AIR 1961 Allahabad 5 8, contended that the order passed by the Sub-Divisional Judge is perfectly correct. But we are afraid if this authority has got any application at all. This is an authority under Payment of Wages Act. N« doubt, it says that the amount ordered to be paid under the Wages Act is to be realized on the basis as if it was a fine. But in the instant case section 386 will not be applicable as there is a special provision for execution of the decree or order passed by the Nyaya Panchayat as provided in section 97 read with Rule 165. If the Panchayat had found any difficulty in the execution then the matter had to be referred to be Magistrate who then could have proceeded to accordance with the provisions of section 386 (3) (a) and (b) of the Criminal Procedure Code. Therefore, there is no compliance with the mandatory provisions of law, the order being illegal and without jurisdiction cannot be sustained. 8. The appeal, therefore, fails and is dismissed. Fine, if paid, shall be refunded. The bail bonds, if any, taken from the accused-persons shall stand discharged. Appeal dismissed.