KAILASH CHANDRA PANIGRAHI Vs. GAYARAM PATEL AND TWO ORS.
HIGH COURT OF ORISSA
Kailash Chandra Panigrahi
Gayaram Patel And Two Ors.
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K.B. Panda, J. -
(1.) THIS is a revision, filed by the first party in a 145, Code of Criminal Procedure proceeding which terminated in favour of the second party.
(2.) THE disputed lands are about 22 acres in area belonging to the deity. Samaleswari. Kailash Chandra Panigrahi. the first party -Petitioner is the managing trustee of the deity. The preliminary order in respect of the 145 proceeding was dated 28 -10 -1971. However, on police report that there was no likelihood of the breach of peace the proceeding was dropped and the case was closed on 15 -11 -1971. Thereafter, on 20 -11 -1971, the same Magistrate directed the police to give effect to the preliminary order which had been passed in the case already closed and finally held possession in favour of the second party. It was contended on behalf of the first party -Petitioner by Mr. Misra that the Magistrate had no jurisdiction to revive an already dropped proceeding and therefore the subsequent order is a nullity. There is much force in this argument.
On behalf of the second party -opposite parties the party had come up in revision against that order before the Sessions Judge. Bolangir -Patna who had rejected the revision. The Sessions Judge could not have finally disposed of the matter without referring it to the High Court. The order dated 20 -11 -1971 is very clear that on the report of the police that there was no likelihood of the breach of peace, the case had been closed. Without a fresh report and a fresh preliminary order, the learned trying Magistrate had no jurisdiction to revive an already closed case. Be that as it may as it appears there has been some civil suit and writ application in respect of this land which has terminated in favour of the first party -Petitioner. The matter had been taken up by the Endowment Department and it has delivered all properties to the first party returnable by 29 -4 -1970. Any way as the initiation of the fresh proceeding on 20 -11 -1971 is without any basis the final order dated 21 -9 -1972 is hereby vacated and the lands be delivered to the first party after release from attachment if they have already been dissevered to the opposite party.
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