SHIV SWARUP Vs. MAHBOOB

JUDGEMENT

(1.) THE present second appeal bas been filed by Shiv Swarup, defendant No. 4. A suit was filed by one Mahboob alleging that there was a grove which was attached in the proceedings under Section 145 Criminal Procedure Code by order of the Sub-Divisional Magistrate, Hasanpur. On attachment the appellant was given possession over the grove and the crop was estimated to be worth Rs. 1400/-. A Supardnama was executed by him which is Exhibit 3 on the record. By that, it appears that he was required to deposit Ks. 1400/- in the Court of the Sub-Divisional Magistrate and on his failure to do so, the aforesaid amount be realised from him. THE Sub-Divisional Magistrate decided the proceedings under Section 145 Criminal Procedure Code in favour of defendant No. 1 on 6-6-1964. THEreafter the matter was contested between defendant No. 1 and the plaintiff before the consolidation authorities. THE consolidation authorities decided the matter in favour of the plaintiff. THE present suit has been filed by the plaintiff claiming Rs. 1400/- from defendant No. 4, i.e. Shiv Swarup. the appellant, and others. He has claimed that Rs. 1400/- was required to be deposited by Shiv Swarup before the Criminal Court and as he had failed to deposit the same, he was liable to pay the same. It was further claimed that the consolidation Courts having decided the matter finally in his favour he was entitled to the produce during the pendency of the aforesaid proceedings. THE defendant No. 4, Shiv Swarup, filed written statement claiming that he had given the produce to the defendant No. 1 as the order of the Criminal Court was passed in his favour. He has also produced a receipt giving discharge to him. THE Courts below have decreed the suit, relying upon the Suourdnama and ignoring the admission of defendant No. 1 and defendant No. 5, that Shiv Swarup had given possession to defendant No. 5, who paid the amount to defendant No. 1, the successful party. However, an important question in the present case has been over-looked by both the Courts below. THE Supurdoama was executed ia favour of the Sub-divisional Magistrate. That Supurduama could not be enforced by the plaintiff. THE Supardnama having been executed and the order having been passed on 6th of June 1964, the defendant No. 4. Shiv Swarup was certainly within his rights to obtain discharge from the Criminal Courts after delivering the property to the successful party. In the instant case there is yet another significant fact that the defendant No. 5, who was a contractor or lessee of the crop, has admitted that defendant No. 4 had nothing to do and he had transferred the possession of the grove to bin. THE defendant No. 1 has also accepted that he has received the produce from defendant No. 5. Under the circumstances there was no cause of action against Shiv Swarup. Even if Shiv Swarup was liable under the Supurdnama, it was only the Criminal Court which could have enforced that Supurdnama under Section 514 of Code of Criminal Procedure and that could not be enforced by the Civil Court. THE only remedy of the plaintiff could be to apply the Magistrate under the provisions of Section 514 Criminal Procedure Code. THE present appeal, therefore, succeeds and is allowed. THE decree of the Courts below is set aside and the suit of the plaintiff is dismissed. As no one appeared on behalf of the respondents, there will be no order as to costs.