BAGRAVAT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BAGRAWAT has filed this revision application against the order dated 6th February, 1967, of the learned Sessions Judge, Ganganagar, and it arises out of the following circumstances: Manak, the proprietor of the land in dispute, was involved in a criminal case under sec. 420 Indian Penal Code which was pending in the court of the Munsiff-Magistrate, Ganganagar. In spite of a bailable warrant issued by the Court for his arrest, Manak did not appear before the court and successfully avoided the execution thereof and therefore the learned Magistrate had to issue a proclamation under sec. 87 Criminal Procedure Code on 14th October, 1965, and when the proclaimed offender did not appear before the court within the period prescribed in the said proclamation, the court ordered the attachment of the land belonging to him on 24th January, 1966 under sec. 88 Criminal Procedure Code, the petitioner, who was the mortgagee of the land in dispute, then filed his claim before the learned Magistrate under sec. 88 (6-A) of the Code, on 8th February, 1966, and he also filed a mortgage-deed dated 2nd June, 1964, executed by Manak in favour of the petitioner for a sum of Rs. 5000/- and prayed that as long as the mortgage subsisted the court has no authority to attach the land and therefore it should be released from attachment. It appears that the learned Magistrate made enquiry in the claim put up by the petitioner and as a result of that enquiry he passed an order on 21st February, 1966 declaring that the petitioner was the mortgagee of the land as such he was entitled to receive Rs. 5,000/ -. The learned Magistrate further ordered that if the proclaimed offender did not appear before 11th June, 1966, the land under attachment shall be put to auction and out of the sale proceeds Rs. 5,000/- shall be paid to the petitioner. The Magistrate also made it clear in that order that henceforth the petitioner shall retain the possession of the land not as a mortgagee but as a receiver appointed by the court and he will retain the possession thereof till the land was auctioned in accordance with the provisions of law. On 11th June, 1966, the case again came up for hearing before the learned Magistrate. On that day also, the proclaimed offender did not put in his appearance before the court. The court, therefore, ordered that the land be auctioned on 11th July, 1966. When the papers were put up before the learned Magistrate on 11th July, 1966, he discovered that the land in dispute was an agricultural property and therefore he directed the Collector Ganganagar to conduct the auction sale of the attached property. The petitioner challenged this order of 11th July, 1966, by filing a revision application before the learned Sessions Judge, Ganganagar and prayed that the land should be released from attachment as it was mortgaged with the petitioner and hence it was not liable to be auctioned by the Collector. This revision application was filed on 3rd of October, 1966. The petitioner obtained an interim order from the Sessions court on that very day directing the Collector not to auction the land, but before that order could reach the Collector, Ganganagar, the auction proceedings were already completed and the land was sold in favour of Sohanlal and Thakarram for Rs. 24,000/ -. It may be mentioned here that these purchasers by the time interim order reached the Collector had already deposited the sale price in the court. The learned Sessions Judge ultimately, after hearing the petitioner, rejected his revision petition as he found it to be time barred. According to the learned Judge, the petitioner by filing the revision application, in fact, wanted to set aside the order of the learned Munsiff-Magistrate of 21st February, 1966 whereby he had adjudicated the claim of the petitioner filed under sec. 88 (6-A) Criminal Procedure Code and since no such revision was filed within time against that order it was held by the learned Judge that the revision application was time barred. While rejecting the petitioner's revision application, the learned Sessions Judge also observed that the order passed by the learned Magistrate under sec. 88 (6a) of the Code of Criminal Procedure was final and it could be set aside only by filing a suit under sec. 88 (6d) of the Code and, therefore, no revision could lie from that order. The petitioner by filing this revision has challenged this finding of the learned Sessions Judge, Ganganagar.

(2.) IT may be mentioned here that in this revision application the petitioner has not impleaded as parties the two purchasers, viz. , Sohanlal and Thakarram whose interests have been created in the land, much before the impugned order was passed. However, the purchaser suo-moto appeared before this Court in order to safeguard their interest and the Court did allow them to represent their viewpoint before it.