GOVINDA PANDA Vs. PANCHANAN RATH AND ORS.

JUDGEMENT

(1.) THE revision petition arises out of the order dated 26.8.85 passed by the Executive Magistrate, Aska in Misc. Case No. 117 of 1981 refusing to drop the proceeding under Section 145 Code of Criminal Procedure.

(2.) THE short and relevant facts of the case are that in course of consolidation operation, the lands which are subject matter of the dispute in the proceeding under Section 145, Code of Criminal Procedure were recorded in favour of the 1st party. The second party preferred revision before the Consolidation Commissioner. The revision was dismissed. The 2nd party filed a writ, being O.J.C. 2515 of 1984, challenging the judgment of the Consolidation Commissioner. At this stage the 2nd party filed a petition before the Executive Magistrate to drop the proceeding in view of the pendency of a civil proceeding i.e. the writ to which the Executive Magistrate refused and hence, this revision has been filed.

(3.) THE learned advocate for the Petitioner relied upon their decisions reported in : AIR 1985 SC 472 (Ram Sumer Puri Mahant v. State of U.P. and Ors.) and : 62 (1986) C.L.T. 146 (Keshab Das and Ors. v. Bauribandhu Behera and Ors.) and argued that in view of the proceeding under Section 145, Code of Criminal Procedure is not maintainable. The above two decisions are quite distinguishable. In the Supreme Court decision there was a decree by the Civil Court and against that decree an appeal had been preferred and the same was pending. In the decision of the Orissa High Court an application for injunction had been filed and the same was rejected. It appears that an appeal had been preferred against that order under Order 39, Rule 1, Code of Civil Procedure. Thus, in both the cases suits were pending and the parties had opportunity to approach the Court for interim injunction or appointment of receiver, as the case may be. In such circumstances, the Court held that continuance of the proceeding under Section 145, Code of Criminal Procedure is only wastage of time specially when the Civil Court is competent to decide the question of possession and also maintenance of status quo in respect of the property involved in the case.