Bhagirathi Srichandan vs Damodar Baral and Another

R.N. Misra, J.—This revision application at the instance of the first party in a proceeding u/s 145 of the code of criminal procedure is directed against the decision of the learned Sessions Judge of Puri vacating the final order in the proceeding and remitting the matter for a fresh disposal.

On 1-10-1973, the Executive Magistrate of Puri initiated a proceeding u/s 145 of the code and drew up a preliminary order. Notices were issued to the opposite parties. As the members of the second party declined to receive notice, the same was hung up on their doors. No notice was, however, given on the disputed property. The second party members did not enter contest in the proceeding and the learned Magistrate by his order dated 11-11-1975 found possession of the first party. Against the final decision of the learned Magistrate a revision was carried to the learned Sessions Judge by members of the second party.

The learned Sessions Judge came to hold that the mandatory provision in Section 145(3) of the code had not been satisfied in as much as a copy of the preliminary order had not been published by being affixed to some conspicuous place at or near the subject of dispute. This is how the learned Sessions Judge dealt with the matter:

Under Section 145(3) of the Criminal Procedure Code, 1973, a copy of the order shall be served in the manner provided by this code for the service of summons upon such person or persons as the Magistrate may direct or at least one copy shall be published by being hung up at some conspicuous part at or near the subject of dispute. On a perusal of the record, it is found that the notice was offered to the second party members by the police A. S. I. of Kanas Out post on 28-10-1973 and when they refused to accept it the notice was affixed on the Sadar door of the second party members. Such service of notice on the party may be sufficient as per provisions of Section 65 of the Criminal Procedure Code, 1973 but no copy of the notice was published by being affixed to some conspicuous part at or near the subject of dispute. In other words, the mandatory provision of Section 145, Code of Criminal Procedure regarding service of notice was not complied with before the hearing of the proceeding was taken up by the learned Magistrate. In the instant case, due to the absence of the second party members in the Court, the order in the proceeding has been passed ex parte. Non-compliance of provisions of Section 145(3) of Code of Criminal Procedure appears to halve occasioned some prejudice to the second party members and the order passed by the learned Magistrate on 11-7-1975 against the second party members without fulfilling the conditions imposed by law does not appear to be just and proper....

The report of the serving officer runs thus:

The order is duly promulgated and the attachment is a duly made in presence of witnesses and by beat of drums. The second party members being duly informed did not accept the notice and refused to sign the notice. Hence, served u/s 71, Code of Criminal Procedure in presence of the above witnesses. Standing paddy crops were found in the attached lands....

There is thus no doubt that the notice has not been affixed at or near the disputed property. Undoubtedly, Sub-section (3) requires that the preliminary order has to be served on the persons who are made parties as also a copy thereof has to be affixed on a conspicuous place at or near the subject of dispute. The object of the affixture on the disputed property is to give other persons who claim to be in possession an opportunity to come to be added as parties. Mr. Mohanty rightly relies upon a series of authorities that the provision for affixture of a copy of the order on the disputed property is directory and in the absence of prejudice, a proceeding does not become vitiated for want of such notice. See Sukhalal Sheikh v. Tara Ghane Ta ILR Cal. 68 (F.B.), AIR 1925 152 (Oudh) , Nurbakhash and Ors. v. Emperor AIR 1917 Lah 35, Wazir Mahton and Others Vs. Badri Mahton and Another, and Bibi Soghra v. Emperor AIR 1948 Pat 17. The learned Sessions Judge has not come to find that the parties had not been noticed. Once it is held that the Petitioners had notice of the proceeding and yet had not appeared in the Court, at their instance for non-compliance of service of notice on the property, the order was not open to attack. The learned Sessions Judge has lost sight of this fact and has re-opened the matter. I am inclined to agree with Mr. Mohanty for the Petitioner that the learned Sessions Judge should not have interfered at all and should have allowed the affected party to proceed to Court by filing a suit.

On the analysis indicated, the order of the learned Sessions Judge is vitiated. I would accordingly vacate it and restore the order of the learned Magistrate. The revision application stands allowed.

Revision allowed.