Khazan Singh vs State of U.P. and Others

M. Wahajuddin, J.—The applicant has come forward with a prayer that the order dated 19-11-1981 of the Magistrate, and dated 18-1-1982 of the revisional Court in case No. 33/11 u/s 145 Code of Criminal Procedure be quashed.

There is no dispute about the fact as such. An application was preferred u/s 145 Code of Criminal Procedure on 20-4-1978 concerning certain plots of village Mahua Khera within circle of Police Station Harduaganj. On 14-6-1978 a preliminary order u/s 145(1) Code of Criminal Procedure was passed directing the parties to appear and put forth their respective claims in respect of the subject matter of the dispute. Thereafter on the same date another order u/s 146(1) Code of Criminal Procedure was passed attaching the property on the ground of emergency. A revision against the order of the SDM was filed and while it was partly dismissed it was held that parties should get their rights decided by a competent civil Court. Khazan Singh, the present applicant, thereafter filed a suit for specific performance and execution of the sale deed impleading Ram Vir Singh opposite party No. 2 and some other as Defendants. That suit was dismissed by the II Additional Civil Judge, Aligarh, vide his judgment and order dated 22-10-1981. Thereafter on the application of Ram Vir Singh, present opposite Party, the learned Magistrate, who had earlier passed the orders u/s 145(1) Code of Criminal Procedure and u/s 146(1) Code of Criminal Procedure and had attached the property directed its release in favour of Ram Vir Singh, present opposite party No. 2 vide his order dated 19-11-1981. It may be mentioned here that in the proceeding u/s 145 Code of Criminal Procedure the Magistrate had held that Court of competent jurisdiction to decide the title and possession and the attachment subsist until such decision of a Court of competent jurisdiction.

The grievance of the applicant is that the matter has not been decided by the Court of competent jurisdiction and that in any case as an appeal was preferred against the decision of the Additional Civil Judge and is also pending the order of the Civil Judge deciding the matter is not final.

The second argument that is urged is that in any case the Magistrate should have given notice to the applicant concerning the release application and could pass orders only after hearing the applicant and an exparte order could not have been passed.

A copy of the judgment of Suit No. 65 of 1978 Khazan Singh v. Netra Pal Singh and Ors. has been annexed with the counter affidavit as Annexure I. It would show that the present applicant filed a suit on basis of an alleged agreement to sell praying that the Defendants on payment of Rs. 25000/- may be directed to execute a sale deed in respect of the property in suit and may deliver possession to the Plaintiff. It is not disputed that the suit related to the very property to which the proceedings u/s 145 Code of Criminal Procedure related. The applicant neither filed plaint of the suit nor the judgment. However, in the aforesaid judgment filed by the opposite party the prayer that was made has been mentioned at the very outset. The Court deciding the suit framed three issues. The first issue was whether the Defendant agreed to sell property for Rs. 75000/- and actually received Rs. 50000/- already. The second issue was whether Defendant No. 2 Ram Vir Singh has paid consideration and has become sirdar. The third issue was as to what relief the Plaintiff is entitled. The relief claimed by the Plaintiff itself indicates that the suit was based upon a claim of title and possession over the property in suit, and the argument that as the suit was based upon the agreement of sale it did not involve a question of title to the property and to the possession of the property cannot have any force. It may also be observed that in the suit of that nature the matter of possession was also relevant for believing or disbelieving the claim. The trial Court after framing the aforesaid issues discussed the evidence issue-wise giving findings and ultimately decided the suit against the applicant which would mean, that all the points that might and could have been raised and arose were adjudicated upon against the applicant. It would appear from the perusal of page 14 of the judgment Annexure I of the counter affidavit that the Plaintiff in the suit namely the applicant had taken stand that after executing an agreement for sale Netrapal Singh Defendant had delivered possession of the properties in suit to the Plaintiff, and that was in dispute. The Civil Court namely the Civil Judge discussed the matter and held that the Plaintiff had not led any proper evidence which may establish his claim of possession over the land. It would thus be borne out that the competent Court of Civil Judge decided that applicant had no right or title including that of possession and that point was decided in favour of the Defendants i.e. the right with regard to the person entitled to the possession, was decided against the applicant and in favour of the opposite side within the meaning of Section 146 Code of Criminal Procedure.

It is further urged that an appeal having been preferred against the judgment and decree of the Civil Judge dismissing the applicant''s suit, the judgment and order of the Magistrate ceased to be operative and it cannot be said that there is a decree of the competent civil Court in favour of the opposite party with regard to the right to possession. Mere filing of an appeal does not nullify the judgment of the lower Court. On the contrary that decree remains subsisting until and unless it is set aside or modified by the Court of appeal. It is conceded that the appellate Court has not stayed the operation of the judgment and decree of the lower Court pending appeal. It has been held in the case of Mohd. Ashraf Khan v. Abdul Rehman AIR 1942 Pesh 11 that a competent Court does not mean final Court of appeal and after decision by trial Court Magistrate can release property from attachment in favour of successful party even though appeal is pending. In that case also the senior Sub-Judge who was competent to decide the case had given decision and an appeal was pending and it was observed that it is not at all necessary that the finding of the Court of appeal should be considered to be of the competent Court within the meaning of the relevant words contained in Sub-section (1) of Section 146 Code of Criminal Procedure. In the case of Kalanad Singh v. Rameshwar Singh 15 CWN 271 i.e. 8 IC 892 and in the case of Tha Zan v. Mq. Ba Gale AIR 1914 LB 218 similar view has been taken. Reliance was placed by the other side upon the case of Nagendra Nath v. Suresh Chand AIR 1932 PC 165 . Actually the matter involved was the question of limitation i.e. Article 182(2) as to whether the execution application was time barred and in that context observation was made that during the period of pendency of appeal limitation was in suspense. Actually, in Article 182 itself it was provided that where there is an appeal time is to run from the date of the decree of the appellate Court and the expression used in that Article called in for interpretation. This ruling is, therefore not on the point. In the present case the expression ''competent Court'' as used in Section 146 Code of Criminal Procedure is to be construed and interpreted and the Civil Judge is a competent Court deciding the matter and there is no provision that in case of an appeal the matter remains in suspense and the trial Court ceases to be competent Court. On the contrary the Peshawar view is based upon the consideration of language used in Section 146 Code of Criminal Procedure itself. The operation of any judgment and decree does not get suspended automatically on preferring of any appeal unless any stay order is passed suspending the operation of such decree which is not the case. In fact, a decree does not become inexecutable merely because an appeal has been filed unless execution of the decree is stayed. In the case of Ram Sri Vs. Sri Kishan and Others, it was held that the mere fact that the limitation for appeal has not expired was no reason for the Magistrate continuing to keep property in attachment. In fact as soon as a competent Court has decided the matter the Magistrate ceases to have authority to retain the control of property and he has to withdraw the attachment and deliver its possession on the basis of such judgment. In the case of Smt. Ram Piyari v. Raj Kumar 1968 AWR 12 it was held that in a proceeding u/s 145 Code of Criminal Procedure what is material is not whether the decree in suit is exparte and an application for setting aside for exparte decree is pending and so long as the decree stands it is to be honoured and to be given effect to.

The applicant relied upon the case of Vijay Nath v. Damodar Das 1970 ALJ 1260 . It simply lays down that appeal is continuation of the suit and nothing beyond that so this ruling is not on the point. Reliance was also placed upon the case of Smt. Ganga Bai Vs. Vijay Kumar and Others, . That ruling is also not helpful. I have already discussed that the matters decided in the suit were relevant. I, therefore, hold that the decree of the Civil Judge is a judgment and decree of a competent Court and the Magistrate had no option but to give effect to it.

I may now consider the next point, namely, the failure to give notice to the applicant. Once copy of the judgment is filed by any party the Magistrate has to implement it and the stage is only of implementation of that judgment as to hold that judgment in question adjudicates on the right to possession of one of the parties repelling the claim of the other and when that is the position obviously any technical pleas cannot prevail when there is no error in implementing the judgment. The powers u/s 482 Code of Criminal Procedure are meant to farther and not to fetter the ends of justice. The Magistrate was bound to give effect to the judgment and he had done that.

In the result the application is rejected.