Decided on August 08,1967

BAGRAVAT Appellant


TYAGI, J. - (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. From the facts narrated above, it is clear that after the attachment of the land the petitioner had put in his claim under the provisions of sec. 88 (6a) before the court that issued the proclamation and the court after enquiry made a specific order that the petitioner was entitled to receive from the sale price of the land Rs. 5000/- as the land was mortgaged with him for that amount. It was also ordered by the learned Magistrate that till the land was not disposed of the land shall remain in the possession of the petitioner as a receiver appointed by the court under the provisions of the Criminal Procedure Code. This order of the court was not challenged by the petitioner by filing a revision application before the Sessions Court or before this Court. He kept quiet till 11th July, 1966. Meanwhile, the case was put up before the court on 11th June, 1966 and on that day the court had passed the order that since the proclaimed offender failed to appear before it the land may be put to auction but that order was also not challenged by the petitioner. When the learned Magistrate came to know that the land to be sold under his order was an agricultural land and that it could be put to auction only by the revenue authorities, he passed an order on 11th July, 1966 that the Collector, Ganganagar may be directed to conduct the auction proceedings of the attached property. It is this order against which the petitioner chose to file a revision application. From the conduct of the petitioner it is apparent that he had accepted the verdict of the learned Magistrate passed by him under the provisions of sec. 88 (6a) of the Criminal Procedure Code wherein it was declared that the interest of the petitioner in the land was only to the extent of Rs. 5000/ -. This interest of the petitioner was safeguarded by the Magistrate by issuing specific direction that the petitioner shall be paid Rs. 5,000/-cut of the sale proceeds and till then the possession of the land shall remain with the petitioner in the capacity of the receiver appointed by the court. From this order it is clear that the petitioner was not immediately dispossessed but the nature of the possession of the petitioner was totally changed. The learned Magistrate made it clear that the petitioner shall henceforth retain the possession of the land as a receiver which means that the possession of the petitioner as a mortgagee came to an end and he started keeping the possession thereof as a representative of the court. Since then the petitioner retained the possession in that capacity and for eight months he did not challenge that order of dispossession as a mortgagee. It is contended by learned counsel for the petitioner that the proclamation issued by the learned Magistrate was not in accordance with the provisions of sec. 87 of the Criminal Procedure Code and therefore the entire proceedings which the learned Magistrate took in this connection were vitiated. I regret, I cannot permit the objection to be raised for the first time before this Court. As a result of the proclamation, the petitioner himself filed his claim before the court. After his claim was adjudicated by the court he did not raise any such objection that the court had no jurisdiction to decide his claim before the superior court. Even after the order of putting the land to auction was passed on 11th June, 1966 the petitioner did not raise his finger against it. He also did not raise the question before the first revisional court that the proclamation was not in accordance with the provisions of sec. |87 of the Code. In these circumstances, it will not be in the interest of justice to allow the petitioner to raise this question for the first time now. The next argument, which was vehemently canvassed before me, was that the criminal court cannot pass any order of dispossessing a mortgagee from the land unless the mortgage was redeemed in accordance with the provisions of the law. No doubt, there is force in this argument but at this stage I very much doubt whether such an argument is available to the petitioner, especially when he had already left his possession as a mortgagee and kept the land in his possession as a receiver appointed by the criminal court. Sec. 88 (6d) of the Code of Criminal Procedure provides that any person whose claim or objection has been disallowed in whole or in part by an order under sub-sec. (6-A) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute. If the petitioner thinks that the order of the learned Magistrate dated 21st February, 1966 had the effect of interfering with his right as a mortgagee, then the remedy under sec. 88 (6-D) of the Code was open to him and he could have claimed his right to possess the land as a mortgagee by filing a suit under that provision. He did not prefer to resort to that remedy also. After the auction was over the purchasers of the lands deposited Rs. 24000/- the amount of sale money in the Government treasury vide draft No. A. 382739 of the State Bank of Bikaner and Jaipur. The rights of third parties have now been created in the land and they cannot be deprived of their rights unless proper action under the law was taken by the petitioner in a competent court of jurisdiction. In my opinion,, the complications have been created by the petitioner himself by not taking proper action at the proper time and by his own laches the right of the third parties were allowed to be created in the land which cannot in the revisional jurisdiction be disturbed by this court. In these circumstances, I do not find any force in this revision application and it is, therefore, dismissed. . ;

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