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Shriram Gangabisan Vs. Bajranglal Gokulchand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ709
AppellantShriram Gangabisan
RespondentBajranglal Gokulchand
Excerpt:
- - if it cannot, of course, clearly it cannot proceed under section 476, criminal p......by any court executing the decree.section 176, criminal p. c, lays down the procedure of making a complaint regarding any of fence (referred to in b. 195 sub-section (l) clause (b) or clause (c)) which appears to have been committed in or in relation to a proceeding in a civil, revenue or criminal court, the proceeding before the learned civil judge (class 2), ellichpur, in relation to which the offence is alleged to have been committed was an execution proceeding, it is contended that that court was a court 'execution the decree' not only during those execution proceedings but also during the subsequent proceedings under section 476, criminal p. c, and while making a complaint in writing and so it could not recognise the uncertified or unrecorded adjustment.4. this is not.....
Judgment:
ORDER

Mangalmurti, J.

1. The learned Civil Judge (Class 2), Ellichpur, recorded a finding under Section 476, Criminal P. C, on 17th August 1946 to the effect that it was expedient in the interests of justice that Shri Bam, who is the applicant in this Court, should be prosecuted, and he decided to make a complaint. Shri Barn's appeal from that order was dismissed by the learned Additional District Judge, Ellichpur.

2. The contention that has been raised in this revision petition is that the two lower Courts could not take into consideration in the proceedings under Section 476, Criminal P. C, the uncertified or unrecorded adjustment of us. 922-8-0 in view of Sub-rule (3) of Rule 2 of Order 21, Civil P. C.

3. Sub-rule (3) is as follows:

A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.

Section 176, Criminal P. C, lays down the procedure of making a complaint regarding any of fence (referred to in B. 195 Sub-section (l) Clause (b) or Clause (c)) which appears to have been committed in or in relation to a proceeding in a civil, revenue or criminal Court, The proceeding before the learned Civil Judge (Class 2), Ellichpur, in relation to which the offence is alleged to have been committed was an execution proceeding, It is contended that that Court was a Court 'execution the decree' not only during those execution proceedings but also during the subsequent proceedings under Section 476, Criminal P. C, and while making a complaint in writing and so it could not recognise the uncertified or unrecorded adjustment.

4. This is not correct. It was no doubt a Court executing the decree during the execution proceedings when the offence was committed ; but 'it was not a Court executing the decree' during the proceedings under Section 476, Criminal P. C, or while making the complaint. So it could take into consideration the uncertified or unrecorded adjustment during the proceedings under Section 476, Criminal P. C., or while making the complaint.

5. The only reported case on the point is Mevappa Chettyar v. U Tun Ela 9 Bang. 104 : A.I.R. 1931 Rang. 148 wherein Carr J. remarked (at p. 108):

The petitioners claim that the effect of Sub-rule (3) of Rule 2 of Order 21 is to prevent the Township Court from recognizing this alleged adjustment of the decree at all, and that, therefore, the Court cannot hold an enquiry under Section 476, Criminal P. C. The argument is that under 3. 195 (1) (b), Criminal P, 0., it is only by virtue of the fact that it has session of the execution proceedings that the Township Court can file a complaint or proceed with a view to doing so under Section 476, Criminal P. C. This argument is based on the use in Order 21, Rule 2 (3) of the words 'any Court executing the decree' and it is contended that that Court cannot recognize the alleged adjustment for any purpose whatever. If it cannot, of course, clearly it cannot proceed under Section 476, Criminal P. C. to enquire whether there was such an adjustment or not. I think, however, that this puts too restricted an interpretation on the meaning of the rule. As I understand it, it means that the Court cannot consider the alleged adjustment in the course of the execution of the decree in question, and does not go farther than that. Any other interpretation would, of course, have the effect of making that part of the provisions of Section 210, Penal Code, which relates to a fraudulent execution of a decree a mere nullity, foe there could never be any prosecution for such an offence,

6. There is, therefore, no reason to interfere and this revision application is hereby dismissed.


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