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Kutiswar Mondal and ors. Vs. Jitendra Nath Sen and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in87Ind.Cas.975
AppellantKutiswar Mondal and ors.
RespondentJitendra Nath Sen and ors.
Excerpt:
criminal procedure code (act v of 1898), sections 146, 438 - order under section 146, operation of, extent of--order when comes to end--record of rights, entry in, whether final adjudication by competent court--reference under section 438, form of. - .....court, criminal appellate side, ch. i, rule 139, and it does not appear from the order which the learned magistrate passed as to what is the recommendation that he makes in connection with the order. reference under section 438, cr. p.c., should always be made in that form. in as much, however, as the order is before us we propose to deal with it and pass necessary orders.2. it appears that an order under section 146, cr. p.c., was passed in respect of these lands by the sub-divisional magistrate on the 27th september 1915. thereafter there were series of litigations between the parties which have been set out in very great detail in the order passed by the learned sub-divisional magistrate as well as in the order passed by the learned district magistrate, and after these litigations.....
Judgment:

1. This is a Reference made by the District Magistrate of Jessore in connection with an order passed by the Sub-Divisional Magistrate of Narail, dated the 5th June 1924, whereby the learned Sub-Divisional Magistrate ordered certain lands which had been under attachment under an order passed under. Section 146, Cr. P. C, to be released in favour of the 1st Party. At the outset we should like to point out to the learned District Magistrate that the Reference is not quite in order. It is not in the form prescribed for such Reference by the General Rules and Circular Orders of this Court, Criminal Appellate Side, Ch. I, Rule 139, and it does not appear from the order which the learned Magistrate passed as to what is the recommendation that he makes in connection with the order. Reference under Section 438, Cr. P.C., should always be made in that form. In as much, however, as the order is before us we propose to deal with it and pass necessary orders.

2. It appears that an order under Section 146, Cr. P.C., was passed in respect of these lands by the Sub-Divisional Magistrate on the 27th September 1915. Thereafter there were series of litigations between the parties which have been set out in very great detail in the order passed by the learned Sub-Divisional Magistrate as well as in the order passed by the learned District Magistrate, and after these litigations and being moved by the two parties to the proceeding under Section 145 which led up to the order under Section 146, Cr. P.C., the learned Sub-Divisional Magistrate on the 5th June 1924 passed an order that the lands which have since then been under attachment be released in favour of the 1st party.

3. Once an order under Section 146, Cr. P.C., has been passed by a Court it cap come to an end only under one of two circumstances, the first being that there is no longer any likelihood of a breach of the peace in regard to the subject-matter of the dispute, in which case the Magistrate would be competent to withdraw the order of attachment and he can do so at any time at which there is no such likelihood, and secondly, it is competent for a Magistrate to release the subject-matter of the dispute from attachment if a competent Court has determined the rights of the parties to the proceedings or the person entitled ' to possession of the subject-matter of the dispute. In the present case the learned Sub-Divisional Magistrate does not find that, as a matter of fact, there is no longer any likelihood of a breach of the peace and he does not base his order on that ground. He has referred to a series of litigations which there was between the parties since the order of attachment and he does not rely even upon the results of those litigations and in point of fact having regard to the orders that were passed in those cases it cannot be said that in any of them, there was any determination by a competent Court of the rights of the parties or as to the person who is entitled to possession of these lands. What has been relied upon by the learned Magistrate is an entry in the finally published Record of Rights to the effect that the lands-appertain to the jama of the 1st party and that they are held by them under the 2nd party. This entry in the Record of Rights can at best be treated as presumptive evidence of the relation of landlord and tenant existing between the 1st party and the 2nd party to the proceedings, and cannot be regarded as constituting the final adjudication of a competent Court within the meaning of Section 146 (1), Cr. P.C. There is, therefore, no valid basis for the order which the learned Magistrate has passed in this case.

4. We accordingly think that that order should be set aside and the lands re-attached under the provisions of Section 146, Cr. P. C, and we order accordingly.


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