SASHIDHAR NAIK Vs. GADADHAR PATEL

JUDGEMENT

(1.) TWO proceedings under Section 144 of the Criminal Procedure Code (hereinafter referred to as the 'Code') were initiated by order dated 10.10.1975 passed by the Executive Magistrate, Sadar, Sundergarh and members of the second party were restrained from entering upon the disputed property in each of the cases by an ex parte order. On 11.11.1975 in each of the aforesaid cases, the learned Magistrate passed an order converting the proceeding into one under Section 145 of the Code and directed attachment of the disputed property together with standing crop. The two proceedings were registered as Miscellaneous Criminal Cases Nos. 70/17 of 1975 and 71/18 of 1975. Even after attaching the property, the learned Magistrate proceeded to dispose of the two cases on merit, By order dated 1.7.1976, he upheld possession of the first party in each of the cases. Members of the second party in both the cases filed Criminal Revisions before the Sessions Judge and those revision cases had been registered as Criminal Revision No. 8 (Sgh.) of 1976 and Criminal Revision No. 9 (Sgh.) of 1976. The learned Sessions Judge on 16.8.1968 (?) dismissed both the revisions in limine.

(2.) MEMBERS of the second party in the two proceedings before the Magistrate have moved this Court for quashing, the final order of the learned Magistrate on the ground that the two final orders are contrary to law having been made without jurisdiction. The first writ application arises out of Miscellaneous Criminal Case No. 71/18 of 1975 and Criminal Revision No. 8 (Sgh.) of 1976 while the second writ petition arises out of the connected case.) This common order of ours disposes of both the writ applications.

(3.) MR . Mohanty for the successful party in the proceedings does not dispute this legal position. He, however, submits that as the statute bars a second revision, jurisdiction under Article 227 of the Constitution should not be exercised after the revision petition has been dismissed. He further submits that attachment has been released after the final order and possession has been delivered in July, 1976. The writ applications have been filed on 11.10.1976. In the circumstances, it would not be appropriate to interfere with the possession of the opposite parties. It is next contended by Mr. Mohanty that there was a suit between the real owner and the first party in each of the cases and the claim of possession has been accepted by the true owner. Though it is true that members of the second party were not before the Court in the civil suit, the true owner having admitted possession of the first party, this Court should be slow in interfering with the impugned order.