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1997 DIGILAW 202 (GAU)

Mustt Begum Nessa v. Anandiram Mankimura

1997-09-15

J.N.SARMA

body1997
A suit was filed by the present respondent for a declaration that the order of attachment passed under section 146 of CrPC is void ab-initio. The suit land was situated in the Tribal Belt and the defendants are not tribal and they have encroached the land, got the possession. The learned Munsiff dismissed the suit holding that the civil Court has no jurisdiction. There was an appeal being TA 4 of 1990 before the ADJ at Lakhimpur and the learned Judge came to the finding that the civil Court has the jurisdiction in such a matter and it can always scrutinise whether the action of the criminal Court is within the bounds of law or within the four comers of law. That power to give the declaration cannot be taken away and having arrived at this finding, he scrutinised the order of attachment and came to the finding that the order of attachment is void-ab-initio. Accordingly the appeal was allowed and the suit was decreed. Hence, this second appeal. 2. Heard Mr. K.K. Mahanta, learned counsel for appellant. None appears for respondents. 3. The only argument advanced by Mr. Mahanta, learned counsel is that this suit is hit by the proviso to section 34 of the Specific Relief Act inasmuch as that the plaintiff could have sought other relief but that has not been sought. In support of this contention, Mr. Mahanta relied on a recent decision of the Apex Court in (1996) 1 SCC 90 (Munilal vs. Oriental Fire and General Insurance Co Ltd & another). That was a case where a declaration was sought regarding entitlement of the appellant for the loss of the truck in terms of the contract, but no consequential relief of the payment of quantified amount and it was on that position, the Apex Court pointed out that this suit shall be hit by proviso to section 34 of the Act. This case does not help the appellant inasmuch as in the instant case, it is the specific case of the respondent that if once attachment is quashed, he will continue to be in possession of the land. 4. The next case relied on by Mr. Mahanta, learned counsel is AIR 1997 Callcutta 202 (Smti Nilima Bose vs. Santosh Kumar Ghosh) wlierein the Calcutta High Court pointed out that the object of section 34 is to prevent future litigation relating to same matter. 4. The next case relied on by Mr. Mahanta, learned counsel is AIR 1997 Callcutta 202 (Smti Nilima Bose vs. Santosh Kumar Ghosh) wlierein the Calcutta High Court pointed out that the object of section 34 is to prevent future litigation relating to same matter. That case also does not help the appellant. This aspect of the matter has been settled long back by the Privy Council as well as by the Division Bench decision of the Calcutta high Court and also by the Division Bench decision of mis Court. In AIR 1943 Callcutta 361 (Chowdhury Mahammad Manjural Haque & others vs. Sebait of Sri Sri Iswar Lakshmi Narayan Jew Thakur, Sri Sri Iswar Saradia Durga Debi Thakurani and Sri Sri Iswari Jagadhatri Debi Thakurani, Bissesswar Banerjee) the Calcutta High Court pointed that section 42 (as it then was) could not be a bar for filing a suit for bare declaration. It was further pointed out that even if the suit does not lie under section 42, the suit will lie under section 9 of CPC and that right to file a suit for mere declaration under section 9 of CPC cannot be deemed to be ousted. That was a case where the Board of Revenue set aside the sale and the suit was filed for a declaration that the order setting aside the sale by the Board of Revenue is void-ab-initio. The Calcutta High Court also has pointed out that such a suit will be maintainable. That aspect of the matter was also considered by a Division Bench decision of this Court in AIR 1950 Assam 141 wherein interpretation of the Calcutta High Court was accepted as the correct interpretation. In view of that matter, there is no merit in this appeal and the same is dismissed. Earlier stay order stands vacated. Before I part with the record. I must make it clear that a person always can file a civil suit if the right is available to him under section 9 of CPC and there is no necessity that he should exhaust alternative remedy as required for filing an application under Article 226 of the Constitution inasmuch as I cannot accept the contention of Mr. I must make it clear that a person always can file a civil suit if the right is available to him under section 9 of CPC and there is no necessity that he should exhaust alternative remedy as required for filing an application under Article 226 of the Constitution inasmuch as I cannot accept the contention of Mr. Mahanta that in order to get rid of the order of attachment, there is ample provision in the Code of Criminal Procedure and without resorting that, a person cannot rush to the civil Court.