1. This application in revision arises out of a peculiar order passed by the Sub-divisional Magistrate, Sadar and Magistrate 1st Class, Purl.
2. In G. R. Case No. 705/T. 147/1954, one Punia Chandra Swain was convicted by the Bub-divisional Magistrate, Puri under S. 381, Penal Code for theft of Rs. 7000/- from the possession of Sri Sindha Kamal Nayana Ramanuj Das, the Mahant of Sidha Math, Puri, who is the opposite party in the present revision. The stolen property consisting of Rs. 7000/- was recovered and seized and was in the custody of the Sub-divisional Magistrate.
3. Khetramohali Nayak, the petitioner herein, obtained a decree against the opposite party in a civil suit. That decree was passed against the opposite party in his personal capacity and it was not a decree against him in his capacity As the Mahant of Sidha Math belonging to Jagannath :Mahaprayu.
4. In execution of the said decree (Execution Case No. 55 of 1954) obtained by the petitioner against the opposite party, the Petitioner got this amount of Rs. 7000/- in the custody of the Magistrate attached and the Munsif of Puri sent a notice to the Sub-divisional Magistrate attaching that amount. Thereupon the opposite party representing Shri Jagannath Mahapravu of Sidha Math filed a petition under Order 21, Rule 52, Civil p. C., claiming the said amount to be his in his representative capacity, before the Sub-divisional Magistrate.
5. The Sub-divisional Magistrate surprisingly enquired into this application by tailing evidence, but on a careful discussion of the evidence adduced by the petitioner and the opposite party before him, came to the conclusion that the sum of Rs. 7000/- which was in deposit with him is the property of Sidha Math belonging to Shri Jagannath Mahapravu, of which the opposite party is the Mahant.
It was also not disputed that the decree obtained by the petitioner was a personal decree against the Mahant not binding on the Math or the properties of the Math. Finally, the Sub-divisional Magistrate held that the sum of RE. 7000/- was the property of Sindha Math and it should be returned to him through his representative Mahant Sidha Kamal Nayana Ramanuj Das. It is against this order that the present revision is filed.
6. The learned counsel for the petitioner contends that this order of the Sub-divisional Magistrate is contrary to law and without jurisdiction; that the Sub-divisional Magistrate usurped the jurisdiction vested in the Civil Court and without any jurisdiction passed an order directing the return of the money duly attached by a, Civil Court to the opposite party : and that an application under Order 21, Rule 52, Civil P.C., cannot be enquiredinto by a Magistrate who tried the criminal ease in which the money was seized.
7. All the contentions of the learned counsel are quite correct. Order 21, Rule 52, Civil P. C., does not contemplate an application to be filed by anybody. It only provides the mode of attachment of money in the custody of any Court and enacts that the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued.
This provision contained in Order 21, Rule 52, Civil P. C., is, by the order of the Sub-divisional Magistrate, violated. But the learned counsel for the opposite party relies upon the proviso to that rule which provides that where such property is in the custody of a Court, any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court, and contends that by virtue of this proviso, the Sub-divisional Magistrate can enquire into the application filed under Order 21, Rule 52, Civil P. C.
8. The claim of the opposite party involved a claim by a third person to the property attached in execution of a decree of the Munsif, Puri: As such, it should be an application under Order 21, Rule 58, Civil P. C. If an application is filed by any person claiming or objecting to the attachment Of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit. This Rule shows that the claim or objection should be investigated by the Court which attached the property.
The proviso to Order 21, R. 52, Civil P. C., is only to the effect that where the attached property is in the custody of a Court, any question of title or priority arising between the, decree-holder and any other, person, not being the judgment-debtor claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.
In the case of 'Visvanadhan v. Arunachalam, reported in 44 Mad 100 : (AIR 1921 Mad 218) (A), the Madras High Court held that when the property attached is in the custody of a Court, it is the duty of such Court to hold it at the disposal of the attaching Court, and it is the duty of the attaching Court, if the property attached is money, to call upon the custody Court to pay it into the attaching Court, and in other cases to provide for the realisation of the property, and to divide the money rateably between the attaching decree-holder and the other decree-holders' who are entitled to rateable distribution under S. 73, Civil P. C.
It was also held in that decision that when the property in the custody Court is the subject of. several attachments in execution of several decrees, the custody Court must award priority to the first in point of time. If the other decree-holders want to share in the rateable distribution, they must apply in time to the first attaching Court. The proviso to the rule does not entitle the custody Court Itself to distribute the assets rateably among the attaching creditors. This casein the Madras High Court was a case of rateabledistribution and a rateable distribution must be made by the attaching -Court.
The same is also the view of the Calcutta High Court as is seen from the case of -- 'Karainl Kumar v. Sasanka Sekhar', reported in 37 Cal WN 820 : (AIR 1933 Cal 814) (B). The proviso authorises the custody Court to determine any question of title or priority only in the case of any assignment or attachment. The applicant before the Sub-divisional Magistrate never claimed any interest in the property by virtue of any assignment or attachment effected by him, Even on the assumption that the Sub-divisional Magistrate is the custody Court, as contemplated under Order 21, Rule 52, Civil P. C., which it is clearly, not asS I will show presently, it can enquire into the matter only if the claim is based upon any assignment or prior attachment by the claimant.
The word 'otherwise' in the proviso; I do not think, covers a case of a claim as is made by the opposite party in his application to the Sub-divisional Magistrate. Even in the case of a claim by assignment or by prior attachment, the application should be one under Order 21, Rule 58, Civil P. C.
9. In my opinion, the learned counsel for the opposite party cannot rely upon the proviso to Order 21, Rule 52, Civil P. C., and contend that the Sub-divisional Magistrate has Jurisdiction to enter into the question of title of the opposite party, in an application either under Order 21, Rule 52 or under Order 21, Rule 58, Civil P. C. The Code of Civil Procedure is essentially and exclusively a Code relating to the procedure of the Courts of the Civil judicature. It is entitled as 'An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature'. The preamble to the Act says:
'Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows.'
It is clear therefore that the provisions of this Code cannbt be relied upon by any litigant before a Magistrate and ask him to enquire into the claim to any property in the custody of such Magistrate. This is always a function of the Civil Court.
The contention of Mr. G. K. Misra, the learned counsel for the opposite party is that the expression 'such Court' in the proviso in Order 21, Rule 52, Civil P. C. refers to the custody Court and that in this case it is the Sub-divisional Magistrate, who is the custody Court and therefore he is entitled to enquiry into the title of the opposite party to the moneys in deposit with him.
In support of his contention, he relied upon a decision in the case of -- 'John Cowie v. Barbara Owen', reported in 10 WB 43 (C). In that case, it was held that the Court of a Deputy Collector is a Court of justice within The meaning of S. 237. Act 8 of 1859 (corresponding to Order 21, Rule 58 of the present Code.)
In that case the Deputy Collector determined the question of priority of claim to the surplus moneys in his Court against the-petitioner before the Calcutta High Court which held that the order of the Deputy Collector was an order of a Court of Justice within the meaning of S. 237 of Act 8 of 1859; that the right to the moneys in question had been finally decided against the petitioner and that the Judge was right in withdrawing his order of attachment.
This case, in my opinion, does not in any way help the learned counsel for the opposite partyas the custody Court in that decision which' decided the question of priority was, a Court of a Deputy Collector and consequently a Revenue Court. If moneys are in deposit in a Reveune Court realised by it from the defendants in a rent suit or in any such like matter, then that Court can invoke the provisions of the Civil Procedure Code, because the Code itself provides for extension of the rules therein to Revenue Courts.
Under S. 5, Civil P. C., where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special ertactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by the Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.
The Code thus provides for making the provisions of the Civil Procedure Code applicable to Revenue Courts and defines a 'Revenue Court' under S. 5 as a Court having Jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes. In the, case of -- 'Nilmoni v. Taranath', reported in 9 Cal 295 (D), the Judicial Committee of the Privy Council held that the Revenue Courts are Civil Courts & they are governed by the Code except in matters where a special procedure is enacted by a local Act.
But this case deals with the applicability of the provisions of the Civil Procedure Code by a Magistrate exercising functions under the Code of Criminal Procedure. Mr. G.K. Misra frankly concedes that there is no case which he has come across in which a Magistrate exercised any power under any provisions of the Code of Civil Procedure. The question involved in this case does not raise any difficulty for decision.
The application' should have been disposed of by the Sub-divisional Magistrate simply by sayingthat he cannot entertain the petition, filed under the provisions of the Civil Procedure Cods. In the Code of Criminal Procedure, the Magistrate exercising Jurisdiction under that Code are termed Magistrates 1st Class, 2nd Class or 3rd Class and many of the provisions of the Code never refer to or use the expression 'in the Court of a Magistrate'.
'Such Court' in Order 21, Rule 52; Civil P. C., refers only to a Civil Court being ordinarily a Civil Court in the country or a Revenue Court to which the provisions of the. Civil Procedure Code are made applicable.
10. In my opinion, therefore, the order is clearly without jurisdiction and the Magistrate exercised the jurisdiction which he had not and the order cannot be sustained. The revision petition is allowed, the order of the Sub-divisional Magistrate is set aside and the petition of the opposite party before the Sub-divisional Magistrate stands dismissed.
11. I agree.