Decided on February 23,1944

Chinnamma Naicken And Ors. Appellant
Rama Naicken And Ors. Respondents


Kuppuswami Ayyar, J. - (1.) THIS is a petition to revise the order of the Joint Magistrate of Karur passed under Section 146, Criminal P.C. There was a dispute about possession between the A and B party who were parties to Miscellaneous Case No. 9 of 1943 on the file of the Joint Magistrate of Karur. Each side claimed to be in possession of the properties. The petitioners before this Court contended that they obtained delivery of possession of the properties in execution of a decree in O.S. No. 19 of 1942 on the file of the Subordinate Judge of Trichinopoly to which some of the members of the A party were parties, and that consequently the right to obtain delivery of possession of properties having been found by a competent Court, the Joint Magistrate was not justified in passing an order under section 146.
(2.) EXHIBIT I -A the delivery attakshi, shows that 2 acres 74 cents in survey field No. 474, 53 cents in 475, 1 acre 11 cents in 477, 4 acres, 1 cent in 478, the southern 14 cents in survey field No. 479, 1 acre 81 cents in 468, southern 3 acres 10 cents out of the 8 acres 90 cents in 770 -A, the western 5 acres 27 cents in survey field No. 774 and eastern half of 472 which is 0 acre 90 cents in extent were delivered over to the two plaintiffs in pursuance of a decree in ejectment, on 18th February 1943. It is argued before me that the decree in that suit is a decree which decided the rights as between the parties as regards the title to these properties and the right to obtain possession and that consequently in the face of that order of a competent Court there was no need for directing a receiver to be in possession of the properties till the question is decided by a competent Court. An order under Section 146 is conceivable only in the absence of an order of a competent Court binding as between the parties to the proceedings. In this case two of the members of the A party were parties to the suit and the other persons who claimed as lessees claimed to be lessees under a lease deed executed by them in 1942. The suit itself, though brought in 1942 was filed in 1941. Therefore the decree will be binding on the lessees who claimed a right under a lease of 1942, by reason of Section 52, T. P. Act. The Joint Magistrate was not able to make up his mind as to whether there was a delivery by the amin or not.. The delivery attakshi itself was filed, but the A party contended that some of the lessees raised an objection and therefore that there was no delivery of possession. But the amin's evidence was that when he went to the land on 15th February, one of the plaintiffs was not present and therefore he had to wait till the 18th and delivered possession on that date and that there was no obstruction. Whatever it be, when there was an order of a competent Court in the decree in the suit which was binding on the parties namely the lessor and the lessees who derived title under a lease deed executed subsequent to the filing of the suit there was already a decision of a competent Court binding on the parties which is valid prima facie till it is set aside and therefore there was no need to pass an order under Section 146, Criminal P.C. In these circumstances, so far as the items mentioned above are concerned , the order under Section 146 of the Code is vacated, and set aside and petitioner's claim to them will be declared.;

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