MADHURI SAHU Vs. SURESWARA SAHU

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 12-12-2001 passed by the learned Additional District Judge (Fast Track Court), Bargarh in Criminal Revision No. 105/4 of 1994- 2001 directing the proceeding under Section 145 of the Code of Criminal Procedure to be dropped.

(2.) The first party in the proceeding under Section 145, Cr. P.C. is the petitioner before this Court. From the record it appears that the petitioner filed an application before the Executive Magistrate, Bargarh for initiation of a proceeding under'Section 145, Cr. P.C. and the said petition was registered as Misc. Case No. 116 of 1994. By order dated 27-8-94 the Executive Magistrate initiated a proceeding directing the opposite party to show-cause and attached the land under Section 146(1) of Cr. P.C. After receipt of notice the opposite party entered appearance and one Sureswar Sahu also intervened the matter as third party in the proceeding and hearing was concluded on the question of continuance of attachment order. By order dated 15-9-94 the Executive Magistrate passed an order directing attachment order to continue till disposal of the case. Said order was challenged In revision before the learned Additional Sessions Judge (Fast Track Court) Bargarh and after hearing the parties in the impugned judgment the revisional Court held that the initiation of the proceeding under Section 145, Cr. P.C. was bad In law and directed the Executive Magistrate to drop the proceeding.

(3.) Facts leading to initiation of the case are that one Baladev Sahu of village Surandapali was the original owner of the disputed properties and was in exclusive possession thereof till his death in March, 1982. Said disputed land was the subject- matter of dispute in Title Suit No. 64 of 1983 pending in the Court of learned Civil Judge (Senior Division), Bargarh. After death of Baladev Sahu properties were succeeded his widow, two daughters and sons. The two daughters are Kuntala who died in the year 1982 and Madhuri who is the present petitioner. After death of Kuntala her husband and two sons as well as three daughters filed a suit for partition of the land of Late Baladev Sahu and in the said suit the petitioner, Lakhpati and Dhoba were arrayed as defendants. On 29-10-1984 preliminary decree was passed in the said suit and a petition was filed for initiation of final decree proceeding. During pendency of the final decree proceeding husband of Kuntala namely Premaraj expired. The legal heirs of Kuntala were already on record. Lakhpati who is son of Baladev Sahu also expired in the year 1989 and wife and daughter namely Saudamini and Mamta were substituted. After such substitution the final decree proceeding again continued. While the final decree proceeding was continuing as such, the petitioner filed an application under Section 145, Cr. P.C. which was registered as Criminal Misc. Case No. 250 of 1989 and the properties involved in the suit being the subject-matter of dispute in the proceeding under Section 145, Cr. P.C. an attachment order was passed under Section 146(1) of Cr. P.C. The Executive Magistrate appointed one Okhila Sahu as receiver. Said proceeding ultimately terminated in a compromise vide order dated 14-12-1992. On 27-9-1991 during pendency of the suit Ac. 1.37 decimals of land was transferred by Saudamini in favour of the present opposite party through a registered sale-deed. It is submitted by the learned counsel for the petitioner that in the written statement filed by Soudamani in the aforesaid suit she challenged the sale-deed executed In favour of the present opposite party and accordingly it was contended that the sale never followed with delivery of possession. The opposite party who claimed to have purchased a portion of the suit land as stated above was impleaded in the suit. In the year 1992 the petitioner filed Misc. Case No. 52 of 1992 under Order 39, Rule 1 and Order 40, Rule 1 of CPC in the said suit to restrain the opposite party from entertaining into the disputed land as well as for appointment of receiver. In May, 1994 the said Misc. Case was dismissed and an appeal was carried to the Court of learned Additional Sessions Judge and was registered as M.A. No. 12 of 1994. While the Misc. Appeal was pending disposal, the present proceeding under Section 145, Cr. P.C. was initiated at the instance of the present petitioner against Saudamini and others and the learned Magistrate passed an order under Section 145, Cr. P.C. directing attachment of the suit properties. In the proceeding under Section 145, Cr. P.C. the present opposite party filed an application to be impleaded on the ground that he has purchased the property from Saudamini and he was allowed to be impleaded as third party to the proceeding by order dated 27-8-1994. Thereafter the learned Executive Magistrate after hearing the parties directed the attachment order to continue till disposal of the proceeding under Section 145, Cr. P.C. or till disposal of the M.A. pending before the learned Additional District Judge. On 13-4-1995 the M.A. was dismissed by the learned Additional Sessions Judge and Civil Revision No. 135 of 1995 was filed before this Court. In the said revision the parties were directed to maintain status in respect of the suit properties and the learned Civil Judge (Senior Division), Bargarh was directed to dispose of the main case as early as possible. On 8-10-96 the final decree proceeding was dropped as parties did not take any step and the present opposite party filed a petition to proceed with the final decree and the same is sub-Judice before the learned Civil Judge (Senior Division), Bargarh. In the year 1997 the petitioner filed Title Suit No. 3 of 1997 in the Court of the learned Civil Judges (Senior Division), Bargarh praying for a declaration that the registered sale-deed dated 27-9-91 executed in favour of the opposite party is inoperative and not binding on her and the opposite party does not derive any title under the same. The suit was decreed on 18-9-1998. However, in the meantime the revision filed against the order of the Executive Magistrate directing attachment order to continue was challenged in revision before the learned Additional District Judge and the proceeding was directed to be dropped. So far as the decree passed in Title Suit No. 3 of 1997 is concerned, it appears that the opposite party has already preferred an appeal being registered as Title Appeal No. 38 of 1998 which is pending disposal.