PURUSHOTHAM GURUKKAL Vs. RAMALINGESWARASWAMY TEMPLE

JUDGEMENT

(1.) .The short question that arises for consideration in this revision is. whether a Magistrate is competent under section 87 of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) hereinafter referred to as the Act) to appoint a Commissioner for effecting delivery of possession. To appreciate the arguments, the following circumstances may be set out. The respondent herein, as managing hereditary trustee, filed a petition under section 87 of the Act against the petitioner for delivery of possession of certain properties belonging to Sri Ramalingeswaraswami Temple and a direction to that effect was given by the said Magistrate. Thereafter, the respondent filed a petition under section 151, Civil Procedure Code, and Order 21, rule 35, Civil Procedure Code, for effecting delivery. It was resisted by ihe other side. The learned Magistrate, by his order dated 4th December, 1961, held that he had the power to enforce the order under the provisions of the Civil Procedure Code and, therefore, appointed Sri N. Subba Rao as Commissioner to effect delivery to the respondent. It is against this order that the present revision has been filed. The contention of the learned counsel for the petitioner is that under section 87 of the Act, the Magistrate has been empowered to give a direction as to the delivery of possession ; he is not competent to enforce the said order under the provisions of the Civil Procedure Code, and that as the Magistrate has been held to be acting as an inferior criminal Court, an order under the provisions of the Civil Procedure Code was beyond his competence. On the other hand, Shri P. Ramachandra Reddi, the learned counsel for the respondent, has urged that it was an executable order, passed by the Magistrate, and as such it could be enforced by him in accordance with the decision in Narayana v. Desika, (1933) 65 M.L.J. 315 : A.I.R. 1933 Mad. 689, and the mere fact that there has been a reference to the Civil Procedure Code would not take away the jurisdiction of the Magistrate.

(2.) It is to be noted that in the previous Act the powers now vested in the Magistrate were exercisable by civil Courts. The intendment of the amendment has obviously been to expedite the procedure and give speedy relief to persons entitled to agitate under this section. It is well settled, as observed above, that the Magistrate functioning under this section is an inferior criminal Court and that the provisions of the Code of Civil Procedure are not attracted to such proceedings. But the question is, how is the Magistrate to enforce his orders ? The contention of the learned counsel for the petitioner that the Magistrate has only to direct delivery and not to enforce it does not seem to be in accordance with the scheme of the Act or intendment of the section viz., to provide speedy relief to the aggrieved persons. Undoubtedly, the order passed by the Magistrate is executable. But, the contention is that the provisions of Criminal Procedure Code only could be applied for the enforcement of the order and resort cannot be had to the provisions of the Civil Procedure Code. In the instant case, what has been done is that the Magistrate appointed a Commissioner to effect delivery of the possession of the properties. It is conceded that if the said order was given to an officer of the Court, say Nazir for example, the position would have been different. I am not able to appreciate how the appointment of a Commissioner materially alters the position. The appointment of the Commissioner, is not beyond the jurisdiction of a Magistrate. In certain cases the appointment of a Commissioner is also authorised by the Criminal Procedure Code. The mere fact that a reference has been made to the provisions of che Civil Procedure Code would not oust the jurisdiction of the Magistrate, who, as observed in the ruling referred to earlier, has all the powers to enforce the order passed by him under section 87 of the Act.

(3.) My attention has been invited to the judgment of our learned brother Anantanarayana Ayyar,J., in an unreported case (Criminal Revision Case No. 368 of 1960) where an order under Order 21, rule 37, Civil Procedure Code, was made against the defaulter by ordering his arrest. It was held therein that the provisions of Civil Procedure Code were not attracted and the order passed by the Magistrate for the arrest of the defaulter was beyond his competency. It is to be noted that the arrest of a judgment-debtor is contemplated under the Civil Procedure Code as a mode of executing the decree. The Criminal Procedure Code does not contemplate any such eventuality for default in the execution of an order. It was, therefore, in my opinion, with respect, correct to say that the Magistrate was not justified in exercising the powers vested in the Civil Procedure Code under Order 21, rule 37. The instant case is distinguishable on facts. Here, as stated above, the Magistrate has merely directed the commissioner appointed by him to effect the delivery of possession. This, as observed above, could be done-under the Criminal Procedure. Code as well. The mere fact that the provisions of Civil Procedure Code have been invoked, would not render the Magistrate helpless to enforce the orders validly passed by him under section 87 of the Act. I am, therefore, of the opinion that though the provisions of the Civil Procedure Code are not attracted, the order of the Magistrate which is in fact an order to enforce the directions given by him under section 87 of the Act does not call for interference. The Revision Case is accordingly dismissed. Revision dismissed.