ABDUL KHALIQ Vs. NAFISUL HASAN AND OTHERS

JUDGEMENT

(1.) This is an application under Sec. 482 Crimial P.C. for quashing the impugned order dated 29.9.1981 passed by City Magistrate, Kanpur by which an application for restitution of possession of the property in dispute was dismissed.

(2.) The facts giving rise to the present application are as follows:- The applicant is a tenant of shop No. 44/126 Mishri Bajar. Kanpur. Suit No. 2503 of 1971 was filed against the applicant for recovery of arrears of rent and damages, on 4.1.1973. The suit was decreed ex-parte. The ex-pane decree has been ultimately set aside on 4.1.1978. After setting aside ex-parte decree. the suit was dismissed on merit on 29.7.1979 by J.S.C.C. Kanpur. After passing of ex-pane decree the opposite parties No.. 2 and 3 obtained possession of the shop in pursuance of ex-pane decree. A report having been made by the landlord opposite parties No. 2 and 3. criminal proceedings under Sections 145 and 146 Cr. P.C. were initiated. In that proceedings City Magistrate attached the property and referred the matter to the Civil Court for deciding as to which party was in possession on the date of preliminary order and within two months prior to it. The Munsif in reference decided the issue of possession and held that opposite parties No. 2 and 3 were in possession of the shop in dispute. The Court of Munsif acts as Civil Court on reference and any order passed by it is revisable under Sec. II C. P.C. No. revision was filed against the order of Munsif, therefore, the order of Munsif became final and criminal court had no option but to pass an order in accordance with the order passed by Munsif.

(3.) In that proceeding the City Magistrate delivered possession to opposite parties No. 2 and 3 on 14.12.1974. After the possession was delivered, the applicant filed objections to the proceedings in execution. The objections were rejected by the trial Court. Against the said order, revision was preferred by applicant which was numbered as Criminal Revision No. 160 of 1975 in the Court of District Judge, Kanpur. The III Additional District Judge, Kanpur by order dated 18.3.1979, allowed the revision and set aside order dated 2.1.1976. The revisional court opined that the possession was delivered to opposite parties No. 2 and 3 in Criminal proceedings. Aggrieved by the order dated 1.3.1979, applicant filed writ petition No. 867 of 1979. which was heard and decided by this court on Febnian 12, 1981. This Court dismissed the writ petition.