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1971 DIGILAW 236 (ORI)

PENMATI DORAYA v. BIBHUTI RANJAN DUBEY

1971-12-14

R.N.MISRA

body1971
JUDGMENT : R.N. Misra, J. - The first party in a proceeding u/s 145, Code of Criminal Procedure is the Petitioner. This proceeding u/s 145, Code of Criminal Procedure was initiated by the preliminary order dated 3-5-1969 in respect of 7. 40 acres of land appertaining to H.S. Plot No. 2173 of village Silet within Atabira P.S. in the district of Sambalpur. During the pendency of the proceeding the property was under attachment. That proceeding terminated in favour of the first party by the final order dated 30-6-1971. On 1-7-1971, the learned Magistrate issued the intimation of such declaration as provided in Form XXII of Schedule V of the Code of Criminal Procedure. 2. In the meantime one of the members of the second party filed a revision before the learned Sessions Judge, Sambalpur, on 7-7-1971. During the absence of the learned Sessions Judge, the Additional District Magistrate (Judicial) before whom the records were placed, passed the following order on 7-7-1971: Heard. Stay operation of the order dated 30-6-1971 in Cr. Misc. Case No. 38 of 69/Tr. 68 of 70 in the Court of Shri A.N. Naik, Magistrate, First Class (Executive), Bargarh, until further order and put up before Sessions Judge on 19-7-1971. Supply copy as prayed for. This order of the revisional Court was brought before the learned Magistrate on 8-7-1971. The formal communication form the Court to the Magistrate, however, came later. As it appears, on 8-7-1971 the property was released from attachment at the spot and the successful party was put into possession after the Court's attachment was withdrawn and the property ceased to be custodia legis. By then the usufructs were, however, still with the receiver who was not present at the time the release was effected and, therefore, the usufructs could not be made over to the successful party. On 24-7-1971, the learned Sessions Judge passed the following order: Advocate for the Petitioner files a petition praying that the lands in dispute be reattached and the lower Court be directed to reattach the same. A separate petition is filed to put up the record today. Another petition is also filed to send the copy of reattachment order hand to band heard. The lower Court made delivery of possession before receipt of the stay order and after passing of the same. A separate petition is filed to put up the record today. Another petition is also filed to send the copy of reattachment order hand to band heard. The lower Court made delivery of possession before receipt of the stay order and after passing of the same. He will please withdraw the order of delivery of possession and maintain status quo as it existed prior to the order directing delivery of possession. Copy be handed over to the Advocate as prayed for. It is this order of the learned Sessions Judge which is impugned in the present revision. 3. There is no dispute that the learned Sessions Judge In entertaining the application u/s 435, Code of Criminal Procedure was not entitled to pass any final orders. If ultimately he was satisfied that it was a fit one to be reported to this Court for interference he could make a report containing his recommendations for interference with the final order as provided u/s 438, Code of Criminal Procedure. Sub-section (1) of Section 438, Code of Criminal Procedure as amended by Act 39 of 1955 provides as far as relevant thus: The Sessions Judge...may, if be thinks fit, on examining u/s 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and when such report contains a recommendation, that a sentence or an order be reserved or altered, may order that the execution of such sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own band. Objection is raised by Mr. Murty to the nature of the order passed by the learned Sessions Judge. He contended that the learned Sessions Judge had no powers to direct reattachment of the property after delivery had been made, and even this Court in revision u/s 439, Code of Criminal Procedure may not have jurisdiction to pass an order of reattachment. It is Dot necessary to examine that aspect of the matter with reference to the powers of this Court because in the present case what is being impugned is the action of the learned Sessions Judge who is in seisin of a revision proceeding u/s 435, Code of Criminal Procedure. 4. It is Dot necessary to examine that aspect of the matter with reference to the powers of this Court because in the present case what is being impugned is the action of the learned Sessions Judge who is in seisin of a revision proceeding u/s 435, Code of Criminal Procedure. 4. Law has been settled in the Supreme Court that a stay order taker effect from the point of time of communication See Mulraj Vs. Murti Raghonathji Maharaj. The learned Sessions Judge himself has indicated in his impugned order that possession had been delivered before receipt of the stay order. As it appears the actual delivery was effected at about 1 P.M. on 8-7-1971. It is not known at exactly what point of time that day the stay order was brought by the Petitioner before the Sessions Judge to the learned Magistrate. The order of the learned Sessions Judge assumes that the delivery of possession was before the receipt of the stay order. Mrs. Padhi for the opposite parties is not in a position to show from the record that the conclusion of the learned Sessions Judge is erroneous. I would accordingly assume for the purpose of the present proceeding that such possession had been delivered prior to the intimation of the stay order by the learned Magistrate. Since a stay order becomes effective only with reference to the point of time when the Court whose order is sought to be stayed receives it, the learned Magistrate was certainly free to deliver the property as a consequence of his finding recorded on 30-6-1971 in the final order. Therefore, once possession had been delivered prior to the communication of the stay order there was no scope for reattaching the property. "Maintaining of the status quo prior to the order directing delivery of possession" amounts to virtually reattaching the property in a case where such possession has already been made over prior to receiving of the said order. Section 438(1), Code of Criminal Procedure authorises suspension of the execution of the order. Some Courts have taken the view that in a declaratory order u/s 145, Code of Criminal Procedure there is noting to be executed, and, therefore, there is nothing to be suspended in such a case. It is not necessary for the present proceeding to examine whether such a view is correct. Some Courts have taken the view that in a declaratory order u/s 145, Code of Criminal Procedure there is noting to be executed, and, therefore, there is nothing to be suspended in such a case. It is not necessary for the present proceeding to examine whether such a view is correct. Suffice it to say that after a declaratory order u/s 145, Code of Criminal Procedure is given effect to by releasing the property from attachment and allowing the successful party to get into possession on the termination of the state of custodia legis by virtue of the power vested u/s 438(1), Code of Criminal Procedure to suspend the execution of the order impugned, 80 reattachment cannot be effected of the property. The learned Sessions Judge, therefore, exercised a power not vested in him when he directed the maintenance of the status quo as it existed prior to the order directing delivery of possession particularly when possession had been delivered prior to communication of the stay order dated 7-7-1971 passed in the revisional Court. This revision application has to succeed. The impugned order dated 24-7-1971 passed by the learned Sessions Judge in Criminal Revision No. 42(s) of 1971 must stand vacated and as possession has already been delivered there would be no question of any reattachment. I have to make it clear that in regard to the delivery of the usufructs the stay order would remain operative because there has already been no delivery of the usufructs to the successful party. My disposing of this revision by quashing the impugned order of 24-7-1971 would not affect the main application u/s 435, Code of Criminal Procedure which is still open to be disposed of in accordance with law by the learned Sessions Judge.