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Vitoba Rao and anr. Vs. T. Narasinga Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.507
AppellantVitoba Rao and anr.
RespondentT. Narasinga Rao and anr.
Cases ReferredMaharaja of Venkatagiri v. Ambarkana Srinivasa Row
Excerpt:
criminal procedure code (act v of 1898), sections 145, 146 - attachment, when can be withdrawn--opposing claims to mesne profits--procedure. - - the release was denied by the sons of ranga rao and as a result the magistrate who has cognizance of the dispute attached the property, as he was not satisfied that any one of the parties was in possession of the property in dispute;.....he says in his plaint that he reserves his right to recover the property belonging to the half share of ranga rao's in a separate suit. admittedly, that separate suit has not been filed up to date. subsequent to the suit of narasinga rao, kesava rao who claimed to have purchased the share of ramappa's brother brought a suit and obtained a decree for an one-fourth share in the property. having regard to the decision in rajah of venkatagiri v. isakapalli subbiah 20 m.p 410 the present petitioners will not be able to bring a suit to recover possession of the property as more than six years have elapsed since the magistrate took possession. the proper course is for the magistrate to withdraw the attachment, as there has been a civil adjudication in favour of some at least of the parties......
Judgment:
ORDER

Seshagiri Aiyar, J.

1. It is to be regretted that the proceeding in this case which commenced in the year 1904 should have been allowed to continue all these years. The dispute, which culminated in the order of 1904, began by the assertion of Narasinga Rao son of of Ramappa that he was entitled to the whole of the property in dispute by virtue of a release from the sous of Ranga Row and also because he was himself entitled to a share in the property. The release was denied by the sons of Ranga Rao and as a result the Magistrate who has cognizance of the dispute attached the property, as he was not satisfied that any one of the parties was in possession of the property in dispute; that was, as I said, in the year 1904. After that, a suit was brought by Narasinga Rao in which he obtained a decree for a sixth share of the properties. He says in his plaint that he reserves his right to recover the property belonging to the half share of Ranga Rao's in a separate suit. Admittedly, that separate suit has not been filed up to date. Subsequent to the suit of Narasinga Rao, Kesava Rao who claimed to have purchased the share of Ramappa's brother brought a suit and obtained a decree for an one-fourth share in the property. Having regard to the decision in Rajah of Venkatagiri v. Isakapalli Subbiah 20 M.P 410 the present petitioners will not be able to bring a suit to recover possession of the property as more than six years have elapsed since the Magistrate took possession. The proper course is for the Magistrate to withdraw the attachment, as there has been a civil adjudication in favour of some at least of the parties. The result of such withdrawal would be to enable Ranga Rao's sons to bring a suit to recover possession against anybody who may have possession of the property. As pointed out in Maharaja of Venkatagiri v. Ambarkana Srinivasa Row 29 Ind. Cas. 321 : 17 M.L.T. 392 : 10 Cri. L.J. 481 it is not necessary that there should be a decree in favour of all the parties to enable the Magistrate to. withdraw the attachment, and if there is an adjudication by a Civil Court in favour of some of the parties, that is sufficient for the purpose of enabling the Magistrate to walk out of the property. Unless this is done the parties will have no remedy.

2. As regards the right to mesne profits, I am clear that the Magistrate will have no jurisdiction to pass any order in regard to it, because there is already a reservation by Narasinga Rao in his plaint in the suit of his right to bring a suit against Ranga Rao's sons for the half share of the properties. It would be too much to expect the Magistrate to dispose of nice questions of res judicata in awarding mesne profits. This is a matter which will have to be considered by the Civil Court. The proper course for the Magistrate is to deposit the money in Court and to allow the parties to litigate their rights in respect of the shares due to them for mesne profits. I find that there was a prayer in the petition presented by the petitioner for the withdrawal of the attachment. I think this is a proper case in which the Magistrate should be directed to withdraw the attachment. I, therefore, direct him to do so. I make no order as to costs.


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