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1973 DIGILAW 186 (PAT)

Jitan Tiwari v. Manan Singh

1973-09-18

B.P.JHA

body1973
JUDGMENT : 1. The petitioner has moved this court for quashing the ORDER :dated the 11th February, 1970, passed by the Sub-Divisional Magistrate, Buxar, in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the "Code"). By this ORDER :the Magistrate directed issue of distress warrant for realisation of the arrear of bid money amounting to Rs. 41,000/- from the petitioner. 2. The relevant facts are these. There was a proceeding under Section 145 of the Code in respect of about 400 bighas of lands situated in village Ekdar Diara, within Brahampur Police Station, in the district of Sahabad. An auction was held on the 25th March, 1969 for settling the disputed land with the highest bidder. The disputed land was settled for Rs. 55,000/- with the petitioner as he was the highest bidder. The petitioner deposited Rs. 14,000/-, being the one-fourth of the bid money, on 25.3.1969 and he was directed to deposit the balance of the amount by the 7th April, 1969. Thereafter the crop was grown on the disputed land by the petitioner, as is clear from Annexure "I" attached to the application filed by the petitioner before this court. Annexure "I" is the copy of the petition filed by the petitioner before the court below. In this petition the petitioner had alleged that rabbi crops were grown by him but the same were cut away and looted by the members of the first and second parties from a major portion of the disputed land. On this allegation it was urged on behalf of the petitioner before the Magistrate that the petitioner was not entitled to deposit the arrear bid money. This argument was rejected by the Magistrate by the impugned ORDER :. In this connection it is relevant to note that Shri G.P. Singh, Magistrate, had been deputed with armed force to help the settlee (the petitioner) in harvesting the crops and in his presence the settlee had peacefully harvested the standing crops. In this view of the matter, the Magistrate directed to issue a distress warrant for the realisation of the arrear bid money amounting to Rs.41,000/- from the petitioner. In this view of the matter, the Magistrate directed to issue a distress warrant for the realisation of the arrear bid money amounting to Rs.41,000/- from the petitioner. In this connection it is relevant to note that the petitioner had moved a revision (Criminal Revision No. 853 of 1969) before this court against the ORDER :of issue of distress warrant for the recovery of Rs.41,000/- that is, the balance amount of bid money. This revision petition was dismissed as no body appeared at the time of hearing on behalf of the petitioner to press the revision petition and as such the petition was dismissed for non-prosecution by the ORDER :of this court dated 23.12.1969. The ORDER :of this court is referred to in the ORDER :of the Magistrate. In this circumstance, the Magistrate was justified in issuing the distress warrant. 3. Learned counsel for the petitioner, on the, basis of Division Bench decision of this court in Kishori Prasad V. Chhota Rameshwar Gope and others (1970 B.L.J.R. 376), urged that the Magistrate was not entitled to issue distress warrant under the code for the realisation of the balance of the bid money. In that case the auction was held on the 14th July 1966 and the highest bidder deposited Rs. 9,250/-, being one-fourth of the bid money, and the balance was to be deposited on the next date. In that case the petitioner did not deposit the balance of the bid money (Rs. 27,750/-) on the date fixed. In that case no parwana was issued to him nor was he directed to take possession of the land. On the 30th July 1966, the petitioner in that case filed an application before the Magistrate for reduction of the bid money and to refund the sum of Rs. 9,250/- already deposited and to cancel his bid. In that case it was held that the application of the petitioner was premature as the Magistrate had not taken any step for the realisation of the balance of the bid money. 4. In my opinion, the decision of the Division Bench does not apply to the facts of the present case. In the instant case, the auction was held and the petitioner had deposited one-fourth of the bid money. He had also grown the crop and had harvested the same from disputed land. 4. In my opinion, the decision of the Division Bench does not apply to the facts of the present case. In the instant case, the auction was held and the petitioner had deposited one-fourth of the bid money. He had also grown the crop and had harvested the same from disputed land. But even after harvesting the crop, the petitioner did not care to deposit the balance of the bid money. In these circumstances, the Magistrate was justified in issuing distress warrant as he was competent to do so under Section 145(8) read with Section 547 of the code. 5. In a proceeding under Section 145 of the Code, the subject matter of the dispute is settled under Section 145(8) of the Code. There is no specific provision for issue of distress warrant in the Code for realisation of the bid money. But the Magistrate under Section 145(8) read with Section 547 of the Code can realise the money as if it were a fine. It is relevant to quote Section 547 of the Code which reads: "547. Any money (other than a fine) payable by virtue of any ORDER :made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine." On a perusal of Section 547, it is clear that any money other than a fine payable by virtue of any ORDER :under this Code shall be recoverable as if it were a fine. The fine is realised in accordance with the procedure laid down in Section 386 of the Code. In my opinion, there is nothing wrong in the procedure adopted by the Magistrate for realisation of the balance of the bid money by issue of a distress warrant. In view of the principle of estoppel, the petitioner cannot deny the truth that he was entitled to pay the balance of the bid money. Once he accepted to pay the balance of the bid money and he grew crops on the disputed land of which he had taken settlement, he cannot now turn back and refuse to pay the amount. Such plea is barred by the principles of estoppel. 6. In the Division Bench decision, the learned Judges relied on a decision of a single Judge of this Court in (1) Ram Lakhan Ahir V. Gulela Singh and others (1961 B.L.J.R. 348). Such plea is barred by the principles of estoppel. 6. In the Division Bench decision, the learned Judges relied on a decision of a single Judge of this Court in (1) Ram Lakhan Ahir V. Gulela Singh and others (1961 B.L.J.R. 348). In that case an auction was held for settlement of the disputed land and the petitioner deposited Rs. 1250/- as earnest money. He defaulted in payment of the balance amount and represented to the Magistrate that other persons were in possession of parts of the disputed land, and as such, the land settled with him be demarcated. The Magistrate by his ORDER :dated 5.3.1959 directed that the earnest money deposited by the petitioner be forfeited and he should not be allowed to harvest the crops. Against that ORDER :, the petitioner moved a revision petition before the Sessions Judge who made a reference to the High Court. This Court held that the ORDER :of forfeiture passed by the Magistrate was not correct. In that case the learned single Judge did not discuss as to whether distress warrant can be issued by the Magistrate for the realisation of the balance bid money. 7. Learned counsel for the petitioner also referred to a decision of a learned single Judge of this court in (2) Kameshwar Pd. Singh V. State of Bihar (1970 P.L.J.R. 106 = 1970 B.L.J.R. 598). In that case the standing rabbi crops were settled by Public auction on 22.1.1968 with the petitioner who was the highest bidder for a sum of Rs.1600/-, which was accepted by an ORDER :of the Magistrate. The bid money was not deposited on that day. On the next day (23.1.1968), the Magistrate passed an ORDER :for issue of distress warrant for realising the sum fixing 23.2 1968. Accordingly a distress warrant was issued for realisation of the money. The facts of this case are quite different from the facts of the present case and, therefore, this decision does not apply to the facts of the present case. On these facts it was held in the above case : "It was only a contract between the court and the petitioner on account of settlement that there could be a liability on the petitioner to pay the bid money. Such liability cannot be considered as being under an ORDER :made under the code. On these facts it was held in the above case : "It was only a contract between the court and the petitioner on account of settlement that there could be a liability on the petitioner to pay the bid money. Such liability cannot be considered as being under an ORDER :made under the code. Therefore, Section 547 of the Code has got an application in this case." I differ from the opinion of the learned single Judge of this court and hold that on the facts of this case, the Magistrate was entitled to realise the balance of the bid money by issue of distress warrant under Section 145 (8) read with Section 547 of the code. 8. In this circumstance, I do not find any reason to interfere with the ORDER :passed by the Magistrate. The application is, accordingly, dismissed and the ORDER :of the Magistrate dated the 11th February, 1970, is hereby affirmed. Application dismissed