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Sashidhar Naik and ors. Vs. Gadadhar Patel and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in44(1977)CLT364; 1978CriLJ1316
AppellantSashidhar Naik and ors.
RespondentGadadhar Patel and ors. Etc.
Cases ReferredSwarn Singh v. State of Punjab
Excerpt:
.....context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple..........in each of the cases by an ex parte order. on 11-11-1975 in each of the aforesaid cases, the learned magistrate passed an order converting the proceeding into one under section 145 of the code and directed attachment of the disputed property together with standing crop. the two proceedings were registered as miscellaneous criminal cases nos. 70/17 of 1975 and 71/18 of 1975. even after attaching the property, the learned magistrate proceeded to dispose of the two cases on merit. by order dated 1-7-1976, he upheld possession of the first party in each of the cases.members of the second party in both the cases filed criminal revisions before the sessions judge and those revision cases had been registered as criminal revision no. 8 (sgh.) of 1976 and criminal revision no. 9 (sgh.) of.....
Judgment:

R.N. Misra, J.

1. Two proceedings under Section 144 of the Cr. P.C. (hereinafter referred to as the 'Code') were initiated by order dated 10-10-1975 passed by the Executive Magistrate, Sadar, Sundergarh and members of the second party were restrained from entering upon the disputed property in each of the cases by an ex parte order. On 11-11-1975 in each of the aforesaid cases, the learned Magistrate passed an order converting the proceeding into one under Section 145 of the Code and directed attachment of the disputed property together with standing crop. The two proceedings were registered as Miscellaneous Criminal Cases Nos. 70/17 of 1975 and 71/18 of 1975. Even after attaching the property, the learned Magistrate proceeded to dispose of the two cases on merit. By order dated 1-7-1976, he upheld possession of the first party in each of the cases.

Members of the second party in both the cases filed Criminal Revisions before the Sessions Judge and those revision cases had been registered as Criminal Revision No. 8 (Sgh.) of 1976 and Criminal Revision No. 9 (Sgh.) of 1976, The learned Sessions Judge on 16-8-1968 (?) dismissed both the revisions in limine.

2. Members of the second party in the two proceedings before the Magistrate have moved this Court for quashing the final order of the learned Magistrate on the ground that the two final orders are contrary to law having been made without jurisdiction. The first writ application arises out of Miscellaneous Criminal Case No. 71/18 of 1975 and Criminal Revision No. 8 (Sgh.) of 1976 while the second writ petition arises out of the connected case. This common order of ours disposes of both the writ applications.

3. Mrs. Padhi for the petitioners contends that the Cr. P.C., 1973 governed the proceedings in question and once the property had been attached, the Magistrate had no jurisdiction to continue the enquiry. According to Section 146 of the Code:

If the Magistrate at any time alter making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, ... he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:

Provided ....

Under Sub-section (2),

When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908);

Provided ....

In both the cases, the learned Magistrate had attached the property and had also directed that the property in dispute in the respective cases be placed in the management of a receiver. Thus the learned Magistrate had no further jurisdiction to enquire as to which party was in possession and the final order in each of the cases upholding the possession of the first party is without jurisdiction.

4. Mr. Mohanty for the successful party in the proceedings does not dispute this legal position. He, however, submits that as the statute bars a second revision, jurisdiction under Article 227 of the Constitution should not be exercised after the revision petition has been dismissed. He further submits that attachment has been released after the final order and possession has been delivered in July, 1976. The writ applications have been filed on 11-10-1976. In the circumstances, it would not be appropriate to interfere with the possession of the opposite parties, It is next contended by Mr. Mohanty that there was a suit between the real owner and the first party in each of the cases and the claim of possession has been accepted by the true owner. Though it is true that members of the second party were not before the Court in the civil suit, the true owner having admitted possession of the first party, this Court should be slow in interfering with the impugned order.

5. We are not satisfied that for the reasons indicated by Mr. Mohanty the final order of the learned Magistrate in each of the cases rendered without jurisdiction should be sustained. Undoubtedly, the Code has barred a second revision at the instance of the same party who may have moved the Sessions Judge in revision at the first instance. The legislative policy of not allowing a second revision before the High Court at the instance of the party who has lost in the first revision cannot be relied upon to affect the jurisdiction of this Court under Article 227 of the Constitution. It has been pointed out by the Supreme Court in the case of Swarn Singh v. State of Punjab : AIR1976SC232 :. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.

We have already indicated that the Magistrate had no jurisdiction to proceed with the enquiry and pass a final order. It is true that the final order is subject to the results of a suit. If the property is custodia legis, a mere declaratory relief for which a fixed amount of court-fee is payable would be adequate. If the present situation is allowed to stand, recovery of possession has to be prayed for and ad valorem court-tee would be demanded. Besides, the orders being palpably without jurisdiction, there is no justification to ask for their sustenance to the prejudice of the petitioners.

6. We would accordingly allow both the writ applications and quash the final orders in the respective proceedings. The orders of the learned Sessions Judge in the connected Criminal Revisions are also set aside. In lieu of the final orders passed by the learned Magistrate in the respective cases, we direct that in each of the cases under Section 145 of the Code, the order shall be to the effect that the property which has been attached by order dated 11-11-1975 shall continue under attachment until a competent court determines the rights of the parties to the disputed property with regard to the person entitled to the possession thereof and the property shall remain in the management of the receiver as directed by the learned Magistrate on the aforesaid date and in case there is no competent receiver in management, the learned Magistrate is directed to make fresh arrangements so that the property may be appropriately looked after.

We make no order as to costs.

N.K. Das, J.

7. I agree.


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