NARAIN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge, Jhunjhunu recommending that the order of the Sub-Divisional Magistrate, Jhunjhunu dated 16-2-60 rejecting the complainant's application be set aside and he be directed to give effect to his order dated 21-10-1959 directing the delivery of possession of immovable property in dispute to the complainant.

(2.) THE relevant facts are these: Narain, the complainant filed a complaint against Nathuram and two others under Section 448 Indion Penal Code in the Court of a Sub-Divisional Magistrate, Jhunjhunu. After trial on 21-10-1959, the Sub-divisional Magistrate convicted the accused and further directed that the property from which the complainant was forcibly dispossessed be restored to his possession. THE accused Nathu and others filed an appeal against that order convicting them and directing delivery of possession to the complainant and got the operation of the order relating to delivery of possession stayed. THE appellate Court, vide its order dated 28-1-1960, maintained the conviction of all the three accused but reduced the sentences. However it did not give any specific directions regarding the delivery of the possession of the property to the complainant but obviously by affirming the order of the lower Court except in respect of the extent of sentences, the direction relating to the delivery of the possession was impliedly maintained by the appellate Court. After the decision of the appeal, the complainant again moved the Sub-divisional Magistrate for enforcing its earlier order dated 21-10-1959 and restoring possession of the property to him. THE Sub-divisional Magistrate by his order dated 16-2 1960 rejected the application and directed the applicant to move the appellate Court if he so liked. Tile complainant challenged the order of the Magistrate in a revision petition before the Sessions Judge. In the meanwhile a revision by the accused against their convictions came to be decided by this Court, and except for a reduction in the sentence passed on Nathu accused the order of the Magistrate was maintained. THE Sessions Judge, in revision, took the view that the appellate and revisional Courts should be deemed to have maintained the direction relating to the delivery of possession and that the trial Court having passed an order under Section 522 Cr. P. C. at the time of recording conviction of the accused, it was quite competent to enforce the order after the dismissal of the appeal of the accused and the vacation of the stay order and that this was not a move for obtaining a fresh order under Section 522 Cr. P. C. and the bar after one month's time could not operate. Holding that the trial Court was not justified in directing the complainant to approach the appellate Court, he has made the above recommendations.