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Narayanappa Vs. D.V. Narayanamurthy and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Criminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 53 of 1951-52
Judge
Reported inAIR1952Kant77; AIR1952Mys77
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 146 and 146(1)
AppellantNarayanappa
RespondentD.V. Narayanamurthy and anr.
Appellant AdvocateB.V. Balaji, Adv.
Respondent AdvocateV. Krishnamurthy, Adv.
Excerpt:
the case focused on the withdrawal of attachment, under section 146 of the criminal procedure code, 1898. - limitation act (36 of 1963)section 5: [n.k.patil,j] order rejecting application for re-grant of inam property appeal against was filed after inordinate delay of 23 years explained by petitioners saying that they came to know about impugned order only after 23 years however, no statement made as to their source of information held, explanation offered by petitioners does not inspire confidence of court. petitioners duty bound to explain delay satisfactorily by assigning cogent reason and showing bona fide. delay not condoned. - i am therefore of opinion that the learned magistrate is under the circumstances perfectly justified in having withdrawn the attachment and released..........the first party in criminal miscellaneous case no. 12 of 1942-43, filed under section 145 of the code of criminal procedure before the special first class magistrate, madhugiri. the learned magistrate being unable to decide which of the party was in possession of the property directed under section 146 (1) of the code of criminal procedure that attachment to continue and appointed the amildar, madhugiri to take possession as the receiver.2. on 27-6-1946, the respondents presented an application on behalf of the second party members from which this revision petition arises praying that the attachment be withdrawn and the receiver be directed not to deal with the property. the petitioner objected on the ground that the application is not maintainable as the present respondents were not.....
Judgment:
ORDER

1. The petitioner is the first party in Criminal Miscellaneous Case No. 12 of 1942-43, filed under Section 145 of the Code of Criminal Procedure before the Special First Class Magistrate, Madhugiri. The learned Magistrate being unable to decide which of the party was in possession of the property directed under Section 146 (1) of the Code of Criminal Procedure that attachment to continue and appointed the Amildar, Madhugiri to take possession as the Receiver.

2. On 27-6-1946, the respondents presented an application on behalf of the second party members from which this revision petition arises praying that the attachment be withdrawn and the Receiver be directed not to deal with the property. The petitioner objected on the ground that the application is not maintainable as the present respondents were not parties to the proceedings under Section 145 of the Code of Criminal Procedure. The learned Magistrate overruled the objection and ordered that the attachment be withdrawn by accepting the decision of the civil Court in favour of the respondents. It is against that order this revision petition is preferred.

3. The applicants, respondents herein, filed a suit against the petitioner in O.S. No. 18 of 1923-24 in the Court of the Subordinate Judge, Bangalore and obtained a decree for possession of half the interest in the schedule properties against the petitioner. (It was only this half share of the petitioner that was in dispute in proceedings under Section 145 of the Code of Criminal Procedure in Criminal Miscellaneous Case No. 12 of 1942-43), and in execution of the decree delivery was obtained through the civil Court in Miscellaneous Case No. 487 of 1941-42 -- symbolical possession of the property -- which was confirmed by the High Court in R. A. No. 73 of 1942-43. It was discovered that the property was under attachment by the Criminal Court and the Amildar as Receiver was in actual possession and management. Besides, the first respondent has also obtained a decree for declaration that he is the owner of the property in dispute and entitled to the amount in deposit in the criminal miscellaneous case (proceedings under Section 145 of the Code of Criminal Procedure) in O.S. No. 605 of 1946-47, against the respondents in the criminal miscellaneous proceedings. These two decrees and the proceedings thereunder form the basis of the claim by the respondents in this petition.

4. section 146 of the Code of Criminal Procedure states that the property in dispute may be attached until a competent Court has determined the rights of the parties thereto or the person entitled to the possession thereof. The duty of the Magistrate is therefore to withdraw the attachment and release the property as soon as it is brought to his notice that a civil Court of competent jurisdiction has determined the person entitled to the possession (Vide 'MAHARAJA OF VENKATAGIRI v. A. SRINIVASA ROW, 16 Cr L J 481 (Mad) and 'JURAWAN SINGH v. RAMSAREKH SINGH', AIR. (20) 1933 Pat 224. The objection that the application by the respondents is not maintainable on the ground that they were 'eo nomine' not parties to the criminal miscellaneous proceedings under Section 145 of the Code of Criminal Procedure has no substance. Section 146 is wide enough to cover third persons who are declared to be entitled for possession of the property even though they are not parties to the original proceedings under Section 145. It is not denied that the petitioner and respondents in Criminal Miscellaneous Case No. 12 01 1942-43 were parties to the civil proceedings in which the rights have been declared and the decisions therefore cannot be said to be not binding on them. The Magistrate is therefore bound to abide by the subsequent decisions of the civil Courts whose competency is not questioned. I am therefore of opinion that the learned Magistrate is under the circumstances perfectly justified in having withdrawn the attachment and released the property which was in dispute before him.

5. It is next contended that the supplementary order directing the Receiver to hand over the crops in his custody to the person in possession of the fields is without jurisdiction. There is nothing illegal in such direction. The criminal Court through its Receiver was managing the property for and on behalf of the successful party. Indeed the respondents have obtained a decree that they are entitled to the deposits in Court in the criminal miscellaneous proceedings. The direction therefore to hand over to the person in possession of the property tantamounts to withdrawal of attachment in respect of the crops collected by the Receiver. Though the power of the Court to direct handing over of the crops cannot be strictly attributed to the exercise of judicial functions under Section 146 of the Code of Criminal Procedure, there appears to be no impediment to release the attachment in respect of the crops that were held by the Receiver on behalf of the Court for the benefit of the person declared by the civil Court to be entitled.

6. In the result, there is no ground to call for interference. This petition therefore fails and is dismissed.

7. Petition dismissed.


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