GYANI DASS Vs. DHARAM DASS

JUDGEMENT

(1.) This petition is directed against an order dated 11-3-1953, passed by Mr. R. N. Sinha, Magistrate with first class powers at Motihari, for the payment of a sum of Rs. 27,000.00 to the opposite party. The petitioners were second party in a proceeding under Section 145, Code of Criminal P. C. which was heard and decided in favour of the opposite party, who constituted the first party in the case. The petitioners claimed possession over an area of 45 bighas out of a total area of 108 bighas of land. They are 38 persons in all, of whom petitioner 1 claims possession through the remaining 37 persons who appear as bataidars under him. The same relation is alleged as between opposite party 1 and the other members of that party, who claim as bataidars under him. Petitioner 1 and opposite party 1 claim the land in dispute and likewise the amount in deposit as mahanths. The final order in the 145 Cr. P. C. case was passed on 20-2-1953, in favour of the opposite party.

(2.) Dharam Dass, opposite party 1, applied on 25-2-1953, for withdrawal of the money in deposit as the successful party in the case under Section 145, Criminal P. C. on the ground that the money, which represented the sale proceeds of the yield from the land in dispute during the pendency of the attachment of the land under Sub-section 4 of Section 145, Criminal P. C., should be handed over to him as a necessary consequence of his success in the main case. The learned lawyer for the petitioners appeared on 27th February and objected to the payment on the ground that his clients had obtained a copy of the judgment in the 145 Criminal P. C. case and that they were ready to move the higher Courts for setting aside the order, and that the learned Magistrate should, therefore, stay passing order for payment in favour of the opposite party. Time was accordingly granted fill 10-3-1953, for bringing stay order from the superior Court.

(3.) The petitioners accordingly moved the learned Sessions Judge of Motihari against the order in the case under Section 145, Criminal P. C. and prayed further that pending the hearing of the application by him, he should be pleased to issue an order for stay of payment of the amount in deposit to the opposite party. The learned Sessions Judge admitted the main application, but felt that he had no power to issue any order for stay of payment, and hence he refused to grant the prayer. The petitioners thereupon moved this Court. It is not necessary to set out in detail the other facts regarding the course of the case in this Court except that on 11-3-1953, Mr. R. N. Sinha passed final order for payment of the amount in deposit to the opposite party against which the petitioners once again moved this Court and obtained the present rule. The matter was placed before me for final hearing, sitting as a Single Judge, when on 23-4-1953 I felt that the question being one of considerable general importance, and there being no authoritative pronouncement of this Court on the point, it was desirable that the case should be heard and disposed of by a Division Bench. It is accordingly placed before us for decision.