1. This is a reference by the learned Additional Sessions Judge of Aligarh. It has been found by the courts below that Sia Ram complainant was put in possession of the southern portion of the house in dispute by the Civil Court Amin on the 10th of December, 1922, in pursuance of an appellate order of the Civil Court. In spite of the possession having been given to Sia Ram as found by the courts below, the accused again took possession of the house forcibly on the 29th of December, 1922. It has been found that force was used and Sia Ram was intimidated and was prevented from getting into the house. Accordingly the accused have been convicted of the offence under Section 448 of the Indian Penal Code and there is no question of interference with that order.
2. The trial court, however, omitted to pass any order under Section 522 of the Code of Criminal Procedure. The appellate court, after upholding the conviction and sentence, directed that the trying Magistrate should restore the rightful person, i.e., Sia Ram again into possession under Section 522 of the Code of Criminal Procedure. The learned Additional Sessions Judge has referred this case to the High Court with a recommendation that the latter portion of the order of the appellate court was ultra vires and should be set aside. Under the old Code of Criminal Procedure there was considerable doubt as to whether an appellate court had power to pass an order under Section 522 of the Code of Criminal Procedure where a trial court had made no order at all. Had some order been passed by the trial court under Section 522 of the Code of Criminal Procedure, then the appellate court, acting under Section 423, Clause (1)(d) of the Code of Criminal Procedure, had power to make any amendment or any consequential or incidental order that might be just or proper and thus to interfere with that order. Where, however, the trial court had not made any order under Section 522 of the Code of Criminal Procedure, it was certainly very doubtful whether the interference by the appellate court could come within the expression ' amendment or any consequential or incidental order that may be just and proper.' In the case of Bhagabat Shaha v. Sadique Ostagar (1912) I.L.R. 39 Calc. 1050, followed in 48 Indian Cases 510, it was held that the appellate court had no jurisdiction to make an order restoring possession of immovable property where the trial court had not made any order at all. These cases are in no way inconsistent with the rule of law laid down in Manki v. Bhagwanti (1904) I.L.R. 27 All. 415 where a trying Magistrate had himself made an order. I, therefore, agree with the view of the learned Additional Sessions Judge that the appellate court had in this case no jurisdiction to make the order in question.
3. The case, however, is a very gross one and in the absence of a restoration of possession, the complainant will be forced to institute fresh proceedings in a Civil Court, soon after a successful litigation. This is a fit case, therefore, for interference by this Court.
4. Under the new Code of Criminal Procedure (as modified and brought into effect on the 1st of September last) the High Court under Section 522, Clause (3), has in a reference or revision power to make an order even though no such order might have been made by the trial or appellate court.
5. Accordingly I set aside that portion of the appellate court's order which directed restoration of possession to the complainant and in place of it make a fresh order directing restoration of possession of that portion of the house which had been delivered over to the complainant in pursuance of the Civil Court decree.
[See also Aziz Ahmad v. Buddhu Khan, I.L.R. 45 All. 553--ED.]