PENMATI DORAYA Vs. BIBHUTI RANJAN DUBEY AND ORS.

JUDGEMENT

(1.) THE first party in a proceeding under Section 145, Code of Criminal Procedure is the Petitioner. This proceeding under Section 145, Code of Criminal Procedure was initiated by the preliminary order dated 3 -5 -1969 in respect of 7.40 acres of land appertaining to H.S. plot No. 2173 of village Silet within Atabira P.S. in the district of Samhalpur. During the pendency of the proceeding the property was under attachment. That proceeding terminated in favour of the first party by the final order dated 30 -6 -1971. On 1 -7 -1971 the learned Magistrate issued the intimation of such declaration as provided in Form XXII of Schedule V of the Code of Criminal Procedure.

(2.) IN the mean time one of the members of the second party filed a revision before the learned Sessions Judge, Sambalpnr, on 7 -7 -1971. During the absence of the learned Sessions Judge, the Additional District Magistrate (Judicial) before whom the records were placed, passed the following order on 7 -7 -1971:

(3.) LAW has been settled in the Supreme Court that a stay order takes effect from the point of time of communication Mulrai v. Murti Raghunathji, A.I.R. 1967 S.C. 1938. The learned Sessions Judge himself has indicated in his impugned order that possession had been delivered before receipt of the stay order. As it appears the actual delivery was effected at about 1 P.M. on 8 -7 -1971. It is not known at exactly what point of time that day the stay order was brought by the Petitioner before the Sessions Judge to the learned Magistrate. The order of the learned Sessions Judge assumes that the delivery of possession was before the receipt of the stay order. Mrs. Padhi for the opposite parties is not in a position to show from the record that the conclusion of the learned Sessions Judge is erroneous. I would accordingly assume for the purposes of the present proceeding that such possession had been delivered prior to the intimation of the stay order by the learned Magistrate. Since a stay order becomes effective only with reference to the point of time when the Court whose order is sought to be stayed receives it, the learned Magistrate was certainly free to deliver the property as a consequence of his finding recorded on 306 -1971 in the final order. Therefore, once possession had been delivered prior to the communication of the stay order there was no scope for reattaching the property. "Maintaining of the status quo prior to the order directing delivery of possession" amounts to virtually reattaching the property in a case where such possession has already been made over prior to receiving of the said order Section 438(1), Code of Criminal Procedure authorises suspension of the execution of the order. Some Courts have taken the view that in a declaratory order under Section 145, Code of Criminal Procedure there is nothing to be executed, and, therefore, there is nothing to be suspended in such a case. It is not necessary for the present proceeding to examine whether such a view is correct. Suffice it to say that after a declaratory order under Section 145, Code of Criminal Procedure is given effect to by releasing the property from attachment and allowing the successful party to get into possession on the termination of the state of custodia legis, by virtue of the power vested under Section 438(1), Code of Criminal Procedure to suspend the execution of the order impugned a reattachment cannot be effected of the property. The learned Sessions Judge, therefore, exercised a power not vested in him when he directed the maintenance of the status quo as it existed prior to the order directing delivery of possession particularly when possession had been delivered prior to communication of the stay order dated 7 -7 -1971 passed by the learned Sessions Judge in Criminal Revision No. 42(8) of 1971 must stand vacated and as possession has already been delivered there would be no question of any reattachment.