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M.C. Chikka Ramaiah and anr. Vs. Appaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Criminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petition No. 56 of 1958
Judge
Reported inAIR1959Kant50; AIR1959Mys50; 1959CriLJ340; (1958)36MysLJ127
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(4), 145(8) and 439; Constitution of India - Article 227
AppellantM.C. Chikka Ramaiah and anr.
RespondentAppaiah and ors.
Appellant AdvocateT. Krishna Rao, Adv.
Respondent AdvocateS. Gundappa, Adv.
Excerpt:
.....the impugned order. held, there is no provision in the act or the rules to review its own order. therefore, the registrar has no power to review his own order. impugned order is one without jurisdiction. - but in his application before the learned magistrate he has complained that he was waiting at the spot from 11 o'clock in the morning. i fail to see any principle of natural justice in support of this theory. it is at best a desparate suggestion. it would be more so in cases like the present one. it would be a breach of faith on the part of the court not to accept the highest bid, excepting for good reasons......class magistrate, ramanagaram, in crime no. 44/57 to take action under section 145, cr. p. c. the learned magistrate issued the necessary preliminary order. in view of the emergency he took action under section 145(4), cr. p. c., and attached the property in dispute with the standing crops. he directed the amildar of magadi taluk to he in charge of the attached property and he also directed him to sell the standing crops by public auction. the amildar reported on 15-1-1958 as follows :'i went to yelachaguppe village on the noon of 13th and after waiting for about an hour and finding that a large number of persons had assembled near the lands, i proceeded with the auctioning of the standing crops on each of the three groups of schedule lands separately. a bid of rs. 2,225/- for the first.....
Judgment:
ORDER

K.S. Hegde, J.

1. The petitioners have challenged the correctness of the order passed by the learned Special First Class Magistrate, Ramanagaram, in Criminal Mis. Case No. 1 of 1958.

2. The facts of the case are as follows :

3. The police of Thippagondanahalli, Magadi Taluk, moved the learned Special First Class Magistrate, Ramanagaram, in Crime No. 44/57 to take action under Section 145, Cr. P. C. The learned Magistrate issued the necessary preliminary order. In view of the emergency he took action under Section 145(4), Cr. P. C., and attached the property in dispute with the standing crops. He directed the Amildar of Magadi Taluk to he in charge of the attached property and he also directed him to sell the standing crops by public auction. The Amildar reported on 15-1-1958 as follows :

'I went to Yelachaguppe Village on the noon of 13th and after waiting for about an hour and finding that a large number of persons had assembled near the lands, I proceeded with the auctioning of the standing crops on each of the three groups of schedule lands separately. A bid of Rs. 2,225/- for the first group, Rs. 100/- for 2nd group and Rs. 10/- for the 3rd group i.e., Rs. 2,335/- in respect of all the three groups was received and the amounts in each case were also paid by the respective highest bidders on the spot in accordance with one of the conditions of the sale instars of all the bidders and other witnessing persons were obtained for the haraj patty find the sale concluded.

Just a few minutes after the conclusion of the sale i.e.. at about 1-45 p.m., a few persons led by one Apish of Jettypalya (probably the first of the two persons of the 2nd party in the case) came to the spot and wanted me to conduct a re-sale of the crops as they would offer higher bids. I refused to do so on the ground that it was their look out to he on the spot during the hours of sale and when the sale was conducted and if they arrived after the sale proceedings had been concluded they arc themselves to blame. They wanted me to receive an application signed by Appaiah wherein he had offered a higher bid of Rs. 4,500/-for all the three schedule lands.'

4. A few more facts need be stated. After the. learned Magistrate directed the sale of the crops, the Amildar, notified the same for sale and the relevant conditions set out in the notifications of the sale are that the sale will be held by the Amildar at 11 a.m., on 13-1-1958; the highest bidder to pay the bid amount immediately after the bids are closed; the auction will be subject to the confirmation by the Special First Class Magistrate, Ramanagaram; and the crops to be cut at the expense of the purchaser. According to the report of the Amildar, he went to the spot at noon and sold the crops by auction.

It is only after the auction was over, the present respondents came and offered to purchase the crops for Rs. 4,500/- It will be seen that in the statement given by the first respondent before the Amildar, he did not make mention of the fact that he or any members of his party were waiting at the spot from 11 o'clock. Reading his statement before the Amildar, as a whole, it gives the impression that he went to the spot only after the auction was over. But in his application before the learned Magistrate he has complained that he was waiting at the Spot from 11 O'clock in the morning. In that statement he had not made mention of the fact as to when the Amildar came to the spot.

Version given by the respondents to the learned Magistrate materially differs from the one given by the 1st respondent to the Amildar. The learned Magistrate did not take any evidence on this petition. He merely heard the parties and passed orders on 25-1-1958 refusing to confirm the sale and directing the Amildar to re-sell the crops. The grounds on which the learned Magistrate has proceeded to his order are (1) that there was irregularity in conducting the sale and (2) that the price fetched is inadequate. He was of the opinion that the sale having been advertised to be held at 11 O'clock, it was the duty of the Amildar to begin the auction proceedings at 11 O'clock. He was also of opinion that the auction should go on till 5 O' clock in the evening and could be closed only then. He found fault with the Amildar for not commencing the sale at 11 a.m., and also for closing the same before 5 p.m. As 1 said before the sale Istiar merely mentioned that the sale will be held at 11 O'clock. It is not the case of the respondents that they came to the locality at 11 O'clock and as the Amildar had not come at 11 O'clock they went away. Their case was that they were there till 1 O'clock in the afternoon. Hence no prejudice could have been caused to them by commencing the auction proceedings later in the day. It is not the law that once an auction starts it should continue till the end of the day though all the available bids had been closed.

I fail to see any principle of natural justice in support of this theory. There are no rules regulating sales held under Section 145, Cr. P. C. The only thing that will have to be considered is as to whether the procedure adopted by the Officer appointed to conduct the sale is likely to cause prejudice to the concerned parties and whether in fact it has caused prejudice. In the instant case according to the respondents they were present at the locality when the Amildar came there.

They stayed there for some time after the Amildar reached that place. They left the place without informing the Amildar. There is no material to come to the conclusion that the Amildar deliberately waited for them to leave the place. It is at best a desparate suggestion. Hence, it cannot be held that the sale held at about 1 O'clock contravenes the terms of the notification or is likely to cause prejudice to the parties.

Even in Civil Courts where there are definite rules for conducting sales, it is not the practice to continue the auction till the close of the day. The Officer who is conducting the sale has a right to close the auction when he considers that there has been a fair opportunity for the parties to bid.

It would be more so in cases like the present one. In this connection I may usefully refer to the ruling reported in Sakharlal Jamnadas v. Piroisha Sorabji AIR 1936 Bom 315. In my judgment no irregularity has been established in this case. The learned Magistrate erred in accepting the allegations made by the respondents in their petition without scrutiny.

He did not even call for a report from the Amildar as regards the allegations made by the respondents. Nor was there any materials in support of the conclusions arrived at by hint. It was an error on his part to have relied upon the interested and rather reckless allegations made by some of the parties.

5. The next point that arises for consideration is as to whether the price fetched in the auction is an inadequate one. Here again the learned Magistrate did not take any evidence. He proceeded on the footing that the. 1st respondent had offered a sum of Rs. 4,500/-. There may be several motives for the 1st respondent to make this offer. The bona fides of the offer needs examination.

The essential question for the learned Magistrate to decide was as to whether the price fetched can be considered as reasonably adequate or not. All that the learned Magistrate considered is the statement made by one of the parties in the main petition who stated in his statement that the value of the crops will be Rs. 6,000/- to Rs. 8,000/-. This cannot be taken as an admission made by the auction purchasers. There is no guarantee that this statement is a true one.

The learned Magistrate was bound to hold a summary enquiry as regards the value of the crops. He should have given opportunity to the auction-purchasers to place their side of the case before determining the value of the crops. He erred in accepting the representations made by the respondents without subjecting the same to scrutiny. Not even a counter statement was called for from the auction purchasers.

6. It is true that the auction in question was held subject to the confirmation of the learned Magistrate. It is open to the learned Magistrate to decline to confirm the sale; but it must be on some valid ground. The Amildar in this case is the agent of the learned Magistrate. The Public have a right to expect that the highest bid will be accepted. It would be a breach of faith on the part of the Court not to accept the highest bid, excepting for good reasons. The grounds on which the learned Magistrate proceeded arc not substantiated.

7. Sri S. Gundappa, the learned Counsel for the respondents contended before me that this revision petition is not maintainable. According to him, the Amildar is not a receiver appointed but only an agent of the Magistrate. Any orders given by the Magistrate to his agent are administrative orders and are not capable of being revised. In this connection he has cited before me the Ruling reported in Zamindar of Devarakota v. Ramaswamy, AIR 1948 Mad 234.

This decision undoubtedly supports his contention. His Lordship Govinda Menon, J. relied on an earlier decision of the Madras High Court reported in Srinivasa Pillay v. Sathayappa Pillay, 14 Ind Cas 739 and came to the conclusion that the directions issued by the Magistrate under Section 145(4) Cr. P. C. are administrative in character and are not liable to be revised by the High Court.

8. Sri Krishna Rao, the learned Counsel for the Petitioners invited my attention to the decision in Jethmul Bhojraj v. Harbans Narajn Singh (S) AIR 1935 Pat 92 wherein Choudhary, J. differed from the decision of Govinda Menon J, and came to the conclusion that the order of attachment (under Section 145 (4). Cr. P. C.) is not an administrative order, and therefore the right to take necessary steps for the management of the property attached, also cannot be said to be an administrative order so as to exclude the possibility of interference by the High Court under any circumstances.

He further came to conclusion that apart from the revisional power under the Code of Criminal Procedure the High Court has power of superintendence over all Courts and tribunals within the State under the Constitution of India, and the order in question can be revised by the High Court under this power of superintendence.

9. It is unnecessary for me to go to the length to which His Lordship Choudhary J. has gone. I am not yet clear in my mind as to whether all orders patted by a Magistrate who is in charge of the property attached under Section 145(4) Cr. P. C. are judicial orders. But I have no hesitation in coming to the conclusion that the present order is a judicial order. It was passed by a Judicial Officer.

The point that arose for determination by the learned Magistrate was as to whether the sale held was vitiated by irregularities or liable to be not confirmed for any other reasons. Those were essentially points for judicial determination. The question before me is as to whether the Magistrate approached the subject judicially.

I am not called upon to consider as to whether his decision is correct on merits. This Court's power under Section 439 Cr. P. C. and under Article 227 of the Constitution are primarily intended to see that the subordinate courts do not discard the canons of law and take to what they consider as short cuts to justice. With great respect I am unable to subscribe to the view taken by His Lordship Govinda Menon J. in the case referred to above.

10. In the result I set aside the order of the learned Magistrate and remand the case back to him to dispose of the same according to law. It is open to him to refuse to confirm the sale if he comes to the conclusion that either that there was any irregularity in conducting the sale or that the price fetched was totally inadequate. But his decision must rest on evidence taken after giving the interested parties opportunity to place their evidence. Let me not be understood to say that there should be an elaborate enquiry. All that is required is a summary enquiry. In the result the criminal revision petition is allowed as indicated heroin above.

11. Revision allowed.


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