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Munia Servai Vs. Thangayya Onturiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad133; (1947)1MLJ171
AppellantMunia Servai
RespondentThangayya Onturiyar and ors.
Cases ReferredMarudayya Thevar v. Shanmugha Sundara Thevar
Excerpt:
- - for, in the first place, the magistrate and therefore ex hypothesi, the high court, can only appoint a receiver while the enquiry is pending, and the enquiry is now over, and in the second place, the magistrate, and therefore again the high court, can appoint a receiver only where it is satisfied that a dispute likely to cause a breach of peace exists, whereas now the magistrate's order has put respondent in possession of the property and there is no danger of a breach of the peace, unless the petitioner intends to defy the order of the magistrate, and the high court would certainly not encourage a party who announces his intention of doing so. this court cannot continue such a receiver or appoint a new receiver unless it is satisfied afresh that a dispute likely to cause a breach..........in the portion of the judgment extracted above still remains, as this is a case of continuing the receiver appointed after the termination of the enquiry. this court cannot continue such a receiver or appoint a new receiver unless it is satisfied afresh that a dispute likely to cause a breach of the peace exists.2. another point of distinction may perhaps be that, as it appears from the judgment in the bench case, the respondent had been already put in possession of the property, whereas in the present case the village munsiff still continues in possession thereof. the real position is that the respondents were deprived of possession on the 24th september, 1946, when the village munsiff was appointed by the court to take possession of the lands and to harvest the crops. mr. venkatarama.....
Judgment:
ORDER

Yahya Ali, J.

1. Mr. Viswanatha Sastri, learned advocate for the respondents, raises an objection in famine against the admissibility of this application for stay of delivery of possession of the disputed lands to the respondents and for continuance of the lands in possession of the village Munsiff any further. His argument is that this Court has no jurisdiction to entertain such a petition, since the only provision of law upon which it could possibly be founded, viz., Section 561-A Criminal Procedure Code does not confer any new or additional powers on this Court and this Court has no inherent power to appoint a Receiver in proceedings that come up under Section 145, Criminal Procedure Code in revision before it. For this position reliance is placed on the decision of a Bench of this Court in Marudayya Thevar v. Shanmugha Sundara Thevar : AIR1926Mad139 . There an application was made asking this Court to appoint a Receiver pending disposal of an application to revise an order passed by the Magistrate under Section 145, Criminal Procedure Code. The learned Judges constituting the Bench held that the High Court has no jurisdiction to entertain such a petition pending disposal of a Criminal Revision Petition. A further contention was pressed before the Bench that this Court has all the powers that the Magistrate has got in the enquiry under Section 145, Criminal Procedure Code. This contention was repelled with the following observations :

Even assuming for the sake of argument that the High Court has that power, it would not in the least avail petitioner. For, in the first place, the Magistrate and therefore ex hypothesi, the High Court, can only appoint a Receiver while the enquiry is pending, and the enquiry is now over, and in the second place, the Magistrate, and therefore again the High Court, can appoint a Receiver only where it is satisfied that a dispute likely to cause a breach of peace exists, whereas now the Magistrate's order has put respondent in possession of the property and there is no danger of a breach of the peace, unless the petitioner intends to defy the order of the Magistrate, and the High Court would certainly not encourage a party who announces his intention of doing so.

Mr. Venkatarama Sastri endeavoured to distinguish this ruling on the ground that the village Munsiff was appointed in this case by consent of both the parties ; but that was when the case was pending enquiry. The reasoning in the portion of the Judgment extracted above still remains, as this is a case of continuing the Receiver appointed after the termination of the enquiry. This Court cannot continue such a Receiver or appoint a new Receiver unless it is satisfied afresh that a dispute likely to cause a breach of the peace exists.

2. Another point of distinction may perhaps be that, as it appears from the judgment in the Bench case, the respondent had been already put in possession of the property, whereas in the present case the village Munsiff still continues in possession thereof. The real position is that the respondents were deprived of possession on the 24th September, 1946, when the village Munsiff was appointed by the Court to take possession of the lands and to harvest the crops. Mr. Venkatarama Sastri concedes that if the Bench decision is applicable to the facts of the case, the preliminary objection has to prevail; but he endeavoured to distinguish it on the ground already stated.

3. I am of opinion that I am bound by the decision of the Bench, and I must, following it, hold that the application for stay of possession which virtually means: the appointment of the village Munsiff as a Receiver cannot be maintained. The petition is dismissed.

4. In this view I have not gone further into the merits of the case and into the various questions involved, viz., about the occupancy rights of the respondents, the nature of the regrant to the petitioner's vendor, etc.


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