RAJENDRA NARAYAN BHANJA DEO Vs. CAHUDHURI CHINTAMANI MAHAPATRA

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Cuttack recommending that an order of a learned Magistrate of Cuttack under Section 145, Criminal P,C., declaring the first party of a proceeding under that Section to be in possession of the property in dispute, namely a stone quarry, be set aside.

(2.) The facts are that the Raja Bahadur of Kanika held a mortgage of two estates of the opposite party. He sued on that mortgage for sale of those estates and before a preliminary decree could be passed, the estate fell into arrears of Government revenue. The Raja Bahadur applied to the Court where the mortgage suit was pending for an order to put him in possession of the property under Order 39, Rule 9, Civil P.C., on the ground that on account of the default of the mortgagor in the payment of Government revenue the mortgaged properties were to be sold. The Court passed an order tinder that rule and a writ of delivery of possession of the properties in favour of the Baja was admittedly served on the locality from 16 October to 18 October 1936. It appears from the papers that the possession of the Kachari of the estate was also given to him, and that certain moveables which were lying there were taken away by the men of the first party. After this delivery of possession commenced the usual struggle of the judgment- debtor to retain the property in spite of the possession given by the Court, and I regret that the Magistrates acted in a manner which if left unnoticed will encourage defiance of the decrees of the Civil Court and paralyze the administration of justice.

(3.) The subject-matter of the present proceeding is a stone quarry situated in one of the two estates possession of which was given by the Court to the second party. In February 1937, the servant of the Raja Bahadur approached the Magistrate with a complaint that his possession of the quarry was being interfered with by the men of the first party who were ousted by the order of the Court. At that time certain proceeding was pending before the learned Subordinate Judge before whom the mortgage suit was being tried. The learned Magistrate thought that as the Raja Bahadur had complained to the Civil Court against the obstruction by the defendant of the suit (first party) who had also asked the Court to recall the delivery of possession the Criminal Courts were not called upon to interfere. He observed that the Baja had not been able to obtain actual possession. In my opinion the view taken by the learned Magistrate was not correct; though I can appreciate his remarks that the Criminal Court should not interfere at a time when questions about delivery of possession were pending before the Civil Court. Be that as it may, the learned? Magistrate dismissed the complaint. The complainant then moved the learned Sessions Judge of Cuttack who dismissed the application. There are certain observations in his order, which, in my opinion, show-absolute misappreciation of the position of the delivery of possession by the Civili Court and as to what actual possession, means and I shall deal with it later.