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AzimuddIn Ahmed and anr. Vs. AlauddIn Bhimya and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.153
AppellantAzimuddIn Ahmed and anr.
RespondentAlauddIn Bhimya and anr.
Cases ReferredCourt Loo. Moore v. Manoranjan Guha
Excerpt:
specific relief act (i of 1877), section 9, suit under, whether maintainable after final order made in proceeddings under section 145 --criminal procedure code (act v of 1898) section 145(4) attachment under, effect of. - .....to the same plot of land there were proceedings under the provisions of section 145 of the code of criminal procedure. those proceedings were instituted on the 16th march 1916, and the final order in the said proceedings made on the 31st march 1916 was in favour of the defendants. it also appears that after or simultaneously with the initiation of the proceedings under section 145, criminal procedure code, there was an order of attachment made under the provisions of the 4th sub-clause of that section. the munsif has held that notwithstanding the order of attachment and the final order made on the 3lst march, he had jurisdiction to make a decree under section 9 of the specific relief act on the ground that the initial or original dispossession in falgoon or february was otherwise.....
Judgment:

Teunon, J.

1. In this case the plaintiffs who is the opposite party before us, has obtained a decree against the defendants for recovery of possession of a certain plot of land under the provisions of Section 9 of the Specific Relief Act. The findings of the Munsif were that the plaintiff was in fact dispossessed by the defendants sometime in Falgoon 1322, that is to say, sometime in February 1916, and that the dispossession was otherwise than in due course of law. Bat it next appears that with reference to the same plot of land there were proceedings under the provisions of Section 145 of the Code of Criminal Procedure. Those proceedings were instituted on the 16th March 1916, and the final order in the said proceedings made on the 31st March 1916 was in favour of the defendants. It also appears that after or simultaneously with the initiation of the proceedings under Section 145, Criminal Procedure Code, there was an order of attachment made under the provisions of the 4th Sub-clause of that section. The Munsif has held that notwithstanding the order of attachment and the final order made on the 3lst March, he had jurisdiction to make a decree under Section 9 of the Specific Relief Act on the ground that the initial or original dispossession in Falgoon or February was otherwise than in due course of law.

2. In support of this view and of the view contended for by the opposite party we have been referred to two cases, one decided by the High Court of Allahabad and reported as Jwala v. Ganga Prasad 39 A. 331 : 5 A.L.J. 297 : A.W.N. (1908) 142, and another decided by the High Court of Bombay and reported as Nagappa v. Sayad Badrudin 26 B. 353 : 3 Bom. L.R. 919. These cases would seem to be in point, except in so far that it does not appear that in those cases there was any intervening attachment. But we are not bound to follow those decisions though they are entitled to our utmost respect, and indeed if the matter were res integra I am not prepared to say that I might not have been disposed to take the same view. But on the facts that have been found we find it impossible to distinguish the case from the case in this Court Loo. Moore v. Manoranjan Guha 7 C.L.J. 547 : 12 C.W.N. 696. There it was found that there had been dispossession by the defendant on the 26th October 1906. Thereafter proceedings under Section 145 of the Code of Criminal Procedure were initiated on the same date between the 3rd and the 10th November and on the 10th November the property was attached by the Court under Section 145(4), Criminal Procedure Code. The facts of this case cannot be distinguished from the facts in that case, and the learned Judges who decided that case, reyling, it would appear, in great measure on the effect of the intervening attachment, held that on those facts a suit brought by the plaintiff under Section 9 of the Specific Relief Act was not maintainable. We are content to follow that case and in that view we make this Rule absolute, but under all the circumstances we make no order as to costs.

Huda, J.

3. I wish only to add that but for the intervening attachment I would have held that the mere order under Section 145, Criminal Procedure Code, was not, sufficient to deprive the plaintiff of the right to relief in a suit under Section 9 of the Specific Belief Act.


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