Skip to content


Tiguti Venkata Peddiraju and anr. Vs. Balireddi Appanna and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 812 of 1964
Judge
Reported inAIR1966AP80; 1966CriLJ256
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(4), 435 and 439
AppellantTiguti Venkata Peddiraju and anr.
RespondentBalireddi Appanna and ors.
Appellant AdvocateK.B. Krishnamurty and ;P. Kameswararao, Advs.;K. Somakonda Reddy, Adv. for ;Public Prosecutor
Respondent AdvocateA. Rama Rao and ;K. Nagaraja Rao, Advs.
DispositionRevision dismissed
Excerpt:
property - nature of order - sections 145 (4), 435 and 439 of criminal procedure code, 1898 - order requiring certain amount to be deposited by lessee during pendency of proceedings under section 145 - revision petition filed against order - such order amounts to administrative order not judicial order - administrative order not subject to revision by high court - no reason to interfere with order of lower court. - .....also filed a written statement. the second petitioner is the lessee of the first petitioner. the learned magistrate attached the dispute property and passed an order in crl. m. p. no. 272 of 1964.4. the present petitioners contend that the sum of rs. 600 ordered by the lower court to be deposited is too low, that the income from the salt pans would be not less than rs. 1,500 for one season which is from 1st week of january to may of each year and that, therefore, they are prejudiced.5. respondents 1 and 2 in this revision petition are respondents 4 and 5 in m. c. no. 5 of 1964. the state is also impleaded as the third respondent in the present revision petition.6. for the sake of convenience, i am referring to the parties by their denomination in m. c. no. 5 of 1964.7. the learned.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. This is a revision petition by Tiguti Venkata Peddiraju and another to revise the order of the learned Additional District Mun-sif Magistrate, Kakinada dated 9-11-1964 in Cri. L. M. P. No. 272 of 1964 in M. C. No. 190 of 1961. The order runs as follows:

'The respondents 4 and 5 have deposited a sum of Rs. 300 in the court of the Sub Divisional Magistrate, Kakinada. The document dated 20-10-1959 which is a lease agreement in respect of Ac. 20-00 shows that it was agreed to take on lease the Ac. 20-00 for a sum of Rs. 6,000. Hence I direct the respondents 4 and 5 to deposit a sum of Rs. 600 in this Court for the Ac. 2-00 as per the schedule on or before 16-11-1964.'

The dispute relates to Acs. 2-00 of land in Up-palanka, hamlet of Gurzarapalli in Kakinada Taluk.

2. The claim of the two petitioners is as follows: The first petitioner viz., Tiguti Venkata Peddiraju, purchased an extent of Acs. 6-20 cts. of land in court auction in execution of 0. S. No. 75 of 1948 on the file of the learned Subordinate Judge, Kakinada. He subsequently entered into a compromise with the Judgment-debtor on 10-9-1963 and got possession of the land the had obtained a sale certificate on 3-2-1959) and the compromise was recorded on 23-10-1963. The land comprised in the sale certificate includes the disputed land of Acs. 2-00. Respondents 1 to 3 trespassed into the land. The first petitioner filed a complaint in Court. Respondents 1, 2, 3 pleaded in that Court that they had vacated the land and were no longer in possession from January 1964. The petitioner went to the field on 27-3-1964 and then found respondents 4 and 5 present there and questioned them. The latter threatened the first petitioner. The result was that the petitioner filed a petition against the respondents 4 and 5.

3. The Sub Divisional Magistrate, Kakinada registered the case as M. C. No. 5 of 1964 and passed a preliminary order on 15-4-1964. On 3-5-1964, respondents 4 and 5 filed written statements and the petitioner also filed a written statement. The second petitioner is the lessee of the first petitioner. The learned Magistrate attached the dispute property and passed an order in Crl. M. P. No. 272 of 1964.

4. The present petitioners contend that the sum of Rs. 600 ordered by the lower court to be deposited is too low, that the income from the salt pans would be not less than Rs. 1,500 for one season which is from 1st week of January to May of each year and that, therefore, they are prejudiced.

5. Respondents 1 and 2 in this revision petition are respondents 4 and 5 in M. C. No. 5 of 1964. The State is also impleaded as the third respondent in the present revision petition.

6. For the sake of convenience, I am referring to the parties by their denomination in M. C. No. 5 of 1964.

7. The learned counsel for respondents 4 and 5 contends that the order passed by the learned Magistrate is purely an administrative order and not a judicial order and that, therefore, it cannot be revised by this Court. For this purpose, he relied on a large number of decisions.

8. In Srinivasa Pillay v. Sathayappa Pillay, 14 Ind Cas 759 (Mad.) it was held as follows:

'The Receiver appointed under Section 146 has got the power of a Receiver appointed under the Code of Civil Procedure. He is invested by law with powers which ho can exercise himself, But the Receiver appointed under this section 145 may not have such powers. He will only be an agent or servant of the Magistrate acting under his order. It is an administrative order passed for the management of property which he has attached. The right to attach carries with it the right to take the necessary steps for its custody and management. It is not a judicial order concerning the petitioners.'

In that case, a revision petition was filed against the order passed under Section 145 Cr. P. C. attaching certain lands together with the crops harvested and rents received since the beginning of the disturbance and it was contended that the Court had no jurisdiction to pass such an order or to pass any order with reference to crops which had been harvested and removed from the lands. It was observed that the Magistrate's order was confined to crops harvested since the beginning of the disturbance and held that he had right to deal with the crops which had been on the lands at the time of disposal. The above decision makes it clear that right to attachment was given by the express provision of the Section and that the right to attach under that provision carried with it the right to take the necessary steps for its custody and management.

9. In Gopala Aiyar v. Krishnaswamy Iyer, 11 Mad LW 459: (AIR 1920 Mad 209) a preliminary order under clause (1) of section 145 Cr. P. C. and an order of attachment and appointment of a receiver made under proviso 2 to clause 4 of that section were called in question before a Division Bench of Burn and Sadasiva Aiyar JJ. It was argued before them on the basis of the decision in Mewa Lal v. Emperor, 3 Pat LJ 147: (AIR 1918 Pat 197) that the Magistrate had no power to take possession. Burn, J., observed as follows:

'When an attachment is made under Section 146 the taking and keeping of possession is contemplated. I see no reason to suppose that attachment under Section 145 has any other meaning. One object of the provision appears to be to keep effective control of the subject in dispute so as to prevent the contesting parties from creating a breach of the peace in their attempts to obtain physical possession. With all respect, I am unable to agree with the view expressed by Mullick J. in 3 Pat LJ 147: (AIR 1918 Pat 197) that such action has no greater force than any Civil Court attachment. A mere restraint on alienation would generally be of no use in pre-venting a breach of the peace, and this is the object with which Section 145 is enacted. In order to keep possession a Magistrate must ordinarily act through sonic agent appointed by him in this behalf. In this case he has been designated a 'receiver'. It may be that another name would be more appropriate and that a person unpointed with reference to an attachment under Section 145 has not the powers which a receiver appointed under Section 146(2) can exercise. It is unnecessary to consider this question, as the record does not disclose that the individual appointed was authorised to do more than take possession of the properties in dispute and submit an inventory of them.....'

Sadasiva Aiyar J., after referring to a large number of other decisions, observed as follows:

'I might finally state, with great respect that I have grave doubts as regards the correctness of the opinion expressed in two of the cases cited to the effect that the power to appoint a receiver of attached property is given under clause (2) of Section 146 only when the attachment is made under Section 146(1) but not when it is made under Section 145. It may be fairly argued that the fact that clause (2) is a part of the Section 146 is not sufficient to narrow the scope of the plain words of clause (2) which relate to all property attached by the Magistrate. (See Craies on Statutes at page 107). However, it is unnecessary to express a final opinion on this question, as the petitioners cannot be aggrieved whether the properties are in the direct custody of the court or in that of a receiver or custodian appointed by the Court.'

It will be observed that the learned Judges only expressed an opinion on the question as to the powers of the agent or receiver appointed under Section 145 clause (4) but did not decide the question whether he had the same powers as receiver appointed under Section 146(2) Cr. P. C.

10. Many years later in Ramakrishnam Pillai v. Narayana Chettiar, 1933 Mad WN 917 Burn, J. held as follows:

'Unfortunately there is no provision in the Criminal Procedure Code for the appointment of a receiver during the pendency or a dispute under Section 145. The appointment of a receiver under Section 146(2), Cr. P. C. can only be made after a final order has been passed under Section Section 146(1) attaching the property.'

The order itself does not give any facts or any contentions. But the introduction to the judgment contained in the report shows that the order sought to be revised by the High Court was an order which had been passed by the Magistrate regarding the fixing of remuneration to the Government Karnam who had been appointed as a receiver by the learned Magistrate to manage a mill which had been attached by him under clause (4) of Section 145 and that the Karnam had managed the mill during a period of five months. In that case, there was no reference to any earlier decision, and in particular, there was no reference to the observation of Burn J. in 11 Mad LW 459: (AIR 1920 Mad 209) or to the decision in 14 Ind Cas 759 (Mad.) It was also held therein that the action of the learned Magistrate appointing the receiver was illegal.

11. In Zamindar of Devarakota v. Rama-swamy, AIR 1948 Mad 234 the relevant facts were us follows: The Sub-Divisional Magistrate took proceedings under Section 145 Cr. P. C. attached certain lanka lands in dispute and directed the Tahsildar to sell the cultivation rights by public auction of each plot separately and submit the sale list and the bidders' list to him. Accordingly, the Tahsildar sold the rights and submitted the lists. The Sub Divisional Magistrate on complaint by certain persons, cancelled the order of the Tahsildar and directed that the cultivation rights be given to the various persons as stated in his order. It was contended before Govinda Menon J. that the Sub Divisional Magistrate had no jurisdiction to set aside the auction held by the Tahsildar. The learned Judge held as follows:

'In 14 Ind Cas 759 (Mad), Sankaran Nair J. laid down that a receiver appointed under Section 145(4), Criminal P. C. is only an agent or servant of the Magistrate whose order is only an administrative order for the management of the property

.......... Therefore the Tahsildar who was directed to sell cultivation rights, is only an agent of the Magistrate and the directions given to him are merely administrative orders which can be varied by the Sub Divisional Magistrate. As the order selling aside the sale passed by the Sub Divisional Magistrate is only an administrative one, no revision lies and this Court cannot interfere.'

In that case, it was dear beyond possibility of doubt that the Tahsildar acted purely as an agent or servant of the Magistrate. Instead of the Magistrate himself personally auctioning the lands, he had auctioned the lands through the Tahsildar. The judgment does not show that the learned Magistrate himself appointed the Tahsildar as a receiver or called him as receiver or gave him any powers other than for simply selling the lands and submitting the lists.

12. In Ramiah v. Nachiappa, : AIR1951Mad764 the question arose whether a Tahsildar who had been appointed as a receiver of property under clause (4) of Section 145 had power to lease the land. Somasundaram, J. re-lying on the decision in 14 Ind Cas 759 (Mad.) held as follows:

'There can therefore be no lease by the Tahsildar appointed to attach the land. But it is open to him to take security from those who are willing to cultivate the land and the security can be taken from those who are willing to give highest security. Whoever cultivates the find after giving such security does so under orders of Court and will abide by the orders of the Court.'

The effect of this decision is that, when theTahsildar has been appointed as receiver, he,by virtue of appointment as a receiver, cannotin his capacity as receiver lease the lands.

13. On the other hand, all the decisions mentioned above are agreed that the Court can take possession of the property and manage it not only directly but also through other agents and such agents will have to carry out the directions of the Court and those agents, whether they are called as receivers or by any other name, appointed in pursuance of an attachment under Section 146(1) Cr. P. C. do not have the full powers of a receiver contemplated under Section 146(2) Cr. P. C.

14. The Magistrate can appoint a receiver under Section 146(2) Cr. P. C. He will not only be called as a receiver but also have all the powers of a receiver appointed under Order 40 of the Code of Civil Procedure. Order 40 Rule 2 makes provision for remuneration of the receiver to be fixed by the Court. Order 40 Rule 3 specifies the duties of the receiver and imposes some responsibility for any loss occasioned to the property by his wilful default or gross negligence. On the contrary, the agent of Court who is appointed by Court regarding the properties attached under Section 145(4) Cr. P. C. whether he be called as receiver or not has to just carry out whatever the Court directs him to do. He cannot, on his own accord, lease out the lands, vide : AIR1951Mad764 . But, it the Magistrate directs him to hold auction of the leasehold rights of the land, he can do so not because as receiver he has got the power but because as receiver or as an agent he has got to carry out whatever he is ordered to do by the Court. Thus, the receiver held auction of the plots under the orders of the Magistrate, vide AIR 1948 Mad 234. In that case, the Magistrate was not bound to give the land on lease to the highest bidders in the auction held by the Tahsildar but had the right to give it to any person to whom he (Magistrate) chose to give. None of the decisions referred to above goes to the extent of saying that the Magistrate, when he has attached cultivable land, has to keep the property unproductive or fallow without any crop or in particular that he should not arrange for the land being cultivated or otherwise made to yield income by being managed either directly or through some agent.

15. The decision in 14 Ind Cas 759 (Mad.) was that the Magistrate had no jurisdiction to pass any order with reference to crops which had been harvested and removed tram the land even before the disturbance and before passing of the preliminary order under Sub-section (1) of Section 145 Cr. P. C., but the learned Judge has nowhere stated that the Magistrate cannot pass an order for the cultivation or productive utilisation of the lands which are attached.

16. None of the decisions which have been cited before me have gone to the extent of deciding in favour of the observations made by Sadasiva Ayyar J. in 11 Mad LW 459: (AIR 1920 Mad 209 regarding the powers of a receiver appointed under Sub-section (4) of Section 145 Cr. P. C.

17. It has been mentioned in various cases referred to above that the order appointing an agent or a receiver under Section 145(4) Crl. P. C. is an administrative order.

18. In Narayana v. Venkatarao, 1959 Mad LJ (Cri) 29 a revision petition was filed against an order of the learned Munsif Magistrate directing the receiver to deliver possession of the property to the party whom he (Magistrate) had declared by a final order under Section 145 Cr. P. C. to be in possession. It was held that no revision lay against that order as it was an administrative order. The learned Judge followed the decision in AIR 1948 Mad 234 and held that the order concerned in that case was only of a declaratory type.

19. Accordingly I accept the contention of the learned Advocate for respondents 4 and 5 that the order of the learned Munsif Magistrate is an administrative order and that it cannot be revised by the High Court.

20. In this case, we are not concerned with the question of the High Court appointing a receiver. We are only concerned with the question whether the order of the lower court should be interfered with. The learned Munsif Magistrate did not appoint a receiver. He only directed one party to deposit a sum of Rs. 600 on the basis of a document relating to the lease of land. I do not find sufficient reason to interfere with the order of the lower court or to hold that the amount fixed is too low. No attachmnet order was passed in this case.

21. In the result, I dismiss the revisionpetition, I hope that the learned Munsif Magistrate will dispose of the main case soon.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //