Decided on March 25,1970

Muniasamy Nadar Appellant


K.N.Mudaliyar, J. - (1.) THE Petitioner was examined as P.W. 1 before the Sub -Magistrate of Tutleorin in C.C. No. 79 of 1969. He closed his shop at 10 p.m. on 24th November 1968. At about 9 p.m. he closed the accounts and left a cash amount of Rs. 575.80. There was a theft of Rs. 575 from his shop that very night. He gave a complaint Ex. P.1 to the Sab -Inspecter of Police, Ottapldaram who recovered Rs. 545, M.O. 8 series in consequence of the admissible portion in Ex. P.4. It is worthy of note that M.O. 8 series were recovered from below the tiles on the north eastern portion of the house of one Ramalakshmi Ammal who is the sister of the accused Arumugham. The learned Sub -Magistrate directed the return of M.O. 8 series to P.W. 1 Munuswami Nadar.
(2.) AT this stage, it may be noted that Rama -lakshmi Ammal did not claim before the Sab -Magistrate of Tuticorin that she has a bona fide claim to the ownership of M.O. 8 series. Ramalakshmi Ammal was the Appellant in C.A. No. 41 of 1969 praying for the reversing of the order of the Sub -Magistrate who directed the return of the property of Rs. 545 to Munuswami Nadar (P.W. 1). In appeal, she succeeded in getting the return of the amount of Rs. 545. The learned Sub -Divisional Magistrate found that he had jurisdiction to pass the order in the appeal before him and that Ramalakshmi Ammal was entitled to the return of the amount claimed by her.
(3.) MUNUSWAMI Nadir (P.W. 1) is now the Petitioner. It is argued that the order of the Sub -Divisional Magistrate of Tuticorin is vitiated by lack of jurisdiction. Various authorities have been cited at the bar, but it is not necessary for me to elaborately deal with every citation of authorities. Suffice it for me to say that the Full Bench decision reported in Maria Pillai v. Ramanathan, 1928 Mad Cri Case 214 :, 1928 M.W.N. 557 clinches the matter in issue. Waller, Madhavan Nair and Jackson, JJ. held that the appeal against the order of a Sub -Magistrate lay only to the District Magistrate and not to the Sub -Divisional Magistrate. It was further held by the Full Bench that where there is no appeal except against the order under Section 517 , the proper forum is the Court of the District Magistrate and it has been the practice hither to and that where a certain procedure has been followed in this Court for many years, a departure from the recognised procedure should ordinarily be deprecated. The opinion of the Full Beach was followed in Maria Pillai v. Gopalakrishna Iyer, 1928 M.W.N. 633. Chandrasekhara Aiyar J. in Inas Rodrigues v. Santhan Souza reported in : A.I.R. 1948 Mad. 114 held that an appeal from an order under Section 517 at the matter of disposal of property can be taken to the District Magistrate which is the court of appeal, following the Fall Beach decision reported is Maria Pillai v. Ramanathan Chettiar, 1928 MCC 214 :, 1928 M.W.N. 557. I held that the Sub -Divisional Magistrate of Tutlcorin has no jurisdiction to entertain the appeal and pass the order directing the Return of Rs. 545 to Ramalakshml Ammal, the Respondent herein.;

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