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Samad Ali and anr. Vs. Abdul Majid and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal314,65Ind.Cas.851
AppellantSamad Ali and anr.
RespondentAbdul Majid and ors.
Excerpt:
criminal procedure code (act v of 1898), section 145 - irregular proceeding--property attached--proceeding dropped--subsequent delivery of property on petition of opposite party, legality of. - .....party, and then, forgetting about the attachment, he awarded possession to the second party as the party in possession merely because the first party had failed to prove its case. in doing so, i think he was clearly wrong. in the first place, having dropped proceedings be ought not to have re opened them, and, secondly, assuming that he had jurisdiction to go on with the case without a fresh proceeding, he ought to have put the parties on the same footing instead of awarding possession to the second party because the first party had failed to prove its case.4. i think we should set aside both the orders of june 22nd, and direct the magistrate to take up the case at the point which it had reached on the morning of june 22nd are to dispose of it according to law.5. let the record be sent.....
Judgment:

Walmsley, J.

1. This Rule arises put of proceedings taken under Section 145, Criminal Procedure Code.

2. In January a proceeding was drawn up in the usual terms and the land was attached under Clause (4). After several adjournments, on June 22nd the learned Magistrate refused to give further time to the first party, and recorded the order, 'proceedings stopped: File.' That is very ambiguous. However, we are not called on to interpret the meaning of such an order for on the same day, a petition was put in by the second party and the learned Magistrate wrote on it this order: 'Heard the parties: examined the documents. The first party have failed to prove their possession and case, though repeated opportunity was granted, second party will remain in possession,' Then he gave the petitioners time to move this Court, and on July 11th this Rule was obtained and on July 13th he ordered that the land should remain under attachment pending disposal of this Rule.

3. The procedure is irregular. It was undoubtedly open to the Magistrate to drop the proceeding if he thought that circumstances rendered them unnecessary, but as the land had been attached under Clause (4), some further order was necessary. But it is the second order to which objection is taken. The Magistrate appears to have re-opened the proceedings at the instance of the second party, and then, forgetting about the attachment, he awarded possession to the second party as the party in possession merely because the first party had failed to prove its case. In doing so, I think he was clearly wrong. In the first place, having dropped proceedings be ought not to have re opened them, and, secondly, assuming that he had jurisdiction to go on with the case without a fresh proceeding, he ought to have put the parties on the same footing instead of awarding possession to the second party because the first party had failed to prove its case.

4. I think we should set aside both the orders of June 22nd, and direct the Magistrate to take up the case at the point which it had reached on the morning of June 22nd are to dispose of it according to law.

5. Let the record be sent down at once.

Suhrawardy, J.

6. I agree.


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