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Oommen Vs. Varkey Joseph - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1956CriLJ1244
AppellantOommen
RespondentVarkey Joseph
Excerpt:
.....chose to remain ex parte it was perfectly legal and proper for the court to pass a decree against them on the basis of the evidence adduced by the plaintiff. the decree thus passed in favour of the plaintiff against defendants 5 and 6 has clearly upheld the plaintiff's right to the possession of the articles in question. in view of such a clear provision in the decree the learned magistrate was clearly in the wrong when he stated that the right to the possession of the articles had not been considered and decided in o. in the face of that decree which has clearly upheld the complainant-plaintiff's claim for possession of the articles in question, there is no necessity at all for the learned magistrate to embark upon an independent inquiry into the right put forward by the claimant..........who had obtained the articles from accused 1 to 3. before considering the claim on its merits, the learned magistrate passed an order directing the complainant to produce the articles in court.2. in the meanwhile the complainant instituted the civil suit o. section 218/1932 on the file of the kottayam district court against accused 1 to 3 in c. c. no. 1131/1952 and against the others to whom possession of the different items of articles of the cinema set had been transferred. the relief claimed in that suit was for a decree declaring his title to these articles and also for a declaration of his right to possession of the same.the claimant in c. c. no. 1131/1952 is the 6th defendant in o. section 218/1952. the district court appointed the complainant plaintiff as the receiver of the.....
Judgment:

Sankaran, J.

1. Certain orders passed by the lower court in the course of the claim proceedings in C. C. No. 1131/ 1952 on the file of that court, have given rise to these petitions. The petitioner is the complainant in that case. A cinema set belonging to him had been given on hire to the three accused in that case who are counter-petitioners 1 to 3 in Crl. R. P. 10/1955, and the complaint against them is that they committed the offence of breach of trust in respect of the cinema set by secretly and unauthorisedly transferring them to third parties.

In the course of a search conducted as per the order of the lower court certain of the articles of the said cinema set were recovered from the possession of the 4th counter-petitioner and those articles were entrusted to the complainant-petitioner after taking a bond or kychit from him. The 4th counter-petitioner filed a claim petition in respect of these articles and it was contended that he was entitled to retain possession of these articles.

It may be mentioned here that he has not set up any title to these articles but has only contended that he had obtained possession of these articles from a person who had obtained the articles from accused 1 to 3. Before considering the claim on its merits, the learned Magistrate passed an order directing the complainant to produce the articles in court.

2. In the meanwhile the complainant instituted the civil suit O. Section 218/1932 on the file of the Kottayam District Court against accused 1 to 3 in C. C. No. 1131/1952 and against the others to whom possession of the different items of articles of the cinema set had been transferred. The relief claimed in that suit was for a decree declaring his title to these articles and also for a declaration of his right to possession of the same.

The claimant in C. C. No. 1131/1952 is the 6th defendant in O. Section 218/1952. The District Court appointed the complainant plaintiff as the receiver of the articles involved in the suit inclusive of those which had already been recovered as per the search conducted in C. C. 1131/1952. In spite of such an order passed by the civil court the learned Magistrate insisted on the complainant producing before him the articles which had been entrusted to him under orders of that court. This necessitated the filing of criminal M. P. 61 of 1953 (A), before this Court by complainant praying that the proceeding in C.C. 1131/1952 may be stayed till the final disposal of O. Section 218/1052 of the Kottayam District Court.

This Court by the order dated 1-4-1953 allowed that petition and ordered stay of the proceedings in C. C. 1131/1952. It was also observed in that order that the decision in the civil case would conclusively set at rest the disputes relating to the ownership and possession of the cinema set. The civil suit was contested by defendants 1 to 3 alone who are respectively accused 1 to 3 in C. C. 1131/1952. The claimant who was the 6th defendant in that case, chose to remain ex parte.

The disputes between the plaintiff and defendants 1 to 3 were compromised by them and the terms of the compromise were embodied in a petition filed in court. Oil the strength of that compromise petition and on the evidence adduced by the plaintiff a decree was passed in favour of the plaintiff directing him to recover from defendants 5 and 6 the articles which they had obtained possession of from defendants 1 to 3.

The decree further authorised the plaintiff to recover from defendants 5 and 6 a sum of Rs. 4,000 as value of these articles in case of default to hand over possession of the articles. The plaintiff's possession of the articles as receiver was terminated and it was declared that he may continue to retain such possession in his capacity as owner of the articles.

3. After the passing of such a decree in O. Section 213/1952 the trial of C. C. 1131/1352 was resumed and at the instance of the claimant the learned Magistrate again directed the complainant to produce in court the articles which had been en-trusted to him. Thereupon the complainant filed a petition on 6th June 1954, praying that in view of the decree in O. Section 218/1952 further investigation of the claim matter may be dropped.

That prayer was dismissed by the lower court by its order dated 15-1-1955 wherein it was stated that 'I do not think that the decision of the Kottayam District Court in O. Section 218/1952 will in any way affect the right of this Court to dispose of these properties on the conclusion of the trial in C. C. 1131/1952.

In pursuance of that order the complainant was directed to produce the articles in court on 18-1-1955. It was also stated that non-compliance with that direction would result in forfeiture of the bond executed by the complainant. Crl. R. P. 10/1955 is directed against this order. Crl. M. P. 7/1955 the complainant has prayed for an order quashing all further proceedings on the strength of the claim petition preferred by the counter-petitioner claimant.

4. Viewed from a strictly legal aspect the opinion recorded by the learned Magistrate that he is competent to pass appropriate orders regarding the disposal of the articles which are involved in C. C. 1131/1952 at the close of the trial of that case, cannot be said to be erroneous.

Section 517 of the Code of Criminal Procedure expressly confers jurisdiction on the trial Magistrate in the matter of passing necessary orders for the disposal of such articles. The fact that such a jurisdiction is conferred on him, does not mean that in the exercise of that jurisdiction he can conveniently ignore all the attendant circumstances which have real bearing on the question of the ownership or the right to the custody of the articles to be dealt with under Section 517. On these questions a proper adjudication by a competent civil court has undoubtedly to be taken note of by the Magistrate while passing order in exercise of the jurisdiction under Section 517.

This position was also clearly indicated by this Court in the order D/- 1-4-1953 on Crl. M. P. 61 of 1953 (A) directing a stay of the proceedings in C. C. 1131 until the final disposal of O. Section 218/1952 on the file of the Kottayam District Court. The parties to C. C. 1131 were all parties to O. Section 218. The articles involved in C. C. 1131 were also involved in O. Section 218. The decision in that civil suit was definitely in favour of the complainant-plaintiff, as is seen from the copy of the decree in that case, which has been produced by the complainant petitioner.

Even though the learned Magistrate's attention was drawn to this decree, he has chosen to ignore its effect. The reasons stated by him for taking up such a position are all erroneous and unsustainable. According to him there was no specific issue in O. Section 218 regarding the right to the immediate possession of the articles involved in the criminal case as also in the civil suit, that the decision in the civil suit was not after a consideration of the merits of the claims of the respective parties but was based on a compromise petition filed by the plaintiffs and defendants 1 to 3 alone and that such a decree is not binding on the claimant who was the 6th defendant and who had not entered appearance and contested the suit.

It is not for the Magistrate to examine the propriety or the correctness of the decision rendered by the civil court. All that the Magistrate has to be satisfied is whether there has been a decision binding on the parties concerned. If the decree in O. Section 218 was based solely on the compromise entered into between the plaintiff and defendants 1 to 3 alone, it could be said that the 6th defendant claimant could not be bound by such a decree.

But a perusal of the decree shows that the decree was passed on the basis of the said compromise and also of the evidence which the plaintiff had adduced in support of his claim. It is obvious that such evidence has been relied on by the District Judge as the basis for the decree as against defendants 5 and 6 who were not signatories to the compromise petition. When these defendants chose to remain ex parte it was perfectly legal and proper for the Court to pass a decree against them on the basis of the evidence adduced by the plaintiff.

The decree thus passed in favour of the plaintiff against defendants 5 and 6 has clearly upheld the plaintiff's right to the possession of the articles in Question. In view of such a clear provision in the decree the learned Magistrate was clearly in the wrong when he stated that the right to the possession of the articles had not been considered and decided in O. Section 218/1952.

5. The learned Magistrate's view that since the 6th defendant claimant remained ex parte the decree in O. Section 218/1952 will not bind him, is also wholly unsustainable. All the defendants are bound by the decree, no matter whether it is a contested decree or only an ex parte decree. As already pointed out, there was the evidence on the plaintiff's side to sustain the decree against the defendants who chose to remain ex parte.

So long as that decree stands, the 6th defendant claimant cannot escape its consequences. If he felt aggrieved by the decree the proper course to be adopted by him was to move the civil court within the prescribed time to have the ex parte decree set aside and to have a fresh decree passed after a due consideration of his contentions also. He did not care to do so in the present instance, and the result is that the decree passed as against him also remains in force.

In the face of that decree which has clearly upheld the complainant-plaintiff's claim for possession of the articles in question, there is no necessity at all for the learned Magistrate to embark upon an independent inquiry into the right put forward by the claimant for the possession of the very same articles. The claimant is bound by the decree in O. Section 218 and hence the learned Magistrate has only to accept that decree and to pass the necessary orders regarding the possession of the articles.

The complainant whose right to the possession of the articles has been declared by the civil court is already in possession of the articles which had been recovered in C. C. No. 1131 and which have been entrusted to him under kychit. To compel him to produce those articles again in the criminal court and to embark upon a fresh inquiry into the question of the right to the possession of the articles, would be a clear abuse of the process of the Court.

C. C. 1131 could itself be disposed of without any further delay in view of the fact that the disputes between the complainant and the accused have already been settled by them as per the compromise petition filed in O. Section 218. It is also seen that after examining the complainant subsequent to the decision of the civil suit the learned Magistrate has posted the criminal case for disposal. Such disposal has to be expedited and there is no necessity to waste the valuable time of the court by unnecessarily pursuing the claim inquiry.

6. In the result Criminal Revision Petition 10/1955 and Crl. M. P. 7 of 1955 are allowed and the order passed by the learned Magistrate on 15-1-1955 directing the complainant to produce the articles in court is set aside. The lower court is directed to dispose of C. C. 1131/1952 as quickly as possible in accordance with law and in the light of the observations made above. On the basis of the decree in O. Section 218/1952 of the Kottayam District Court, necessary orders will be passed regarding the possession of the articles recovered in O. C. 1131/ 1952.


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