- (1.)THIS is a revision-petition directed against the Judgment of learned Additional sessions Judge No. 2, Jodhpur, dated November 30, 1966. Tt is alleged by the prosecution that Mst Noii wife of Bhinya Ram, non-petitioner No. 3, owned a house in Mohalla Hanumanji-ki-Bhakri, Jodhpur She possessed a title deed in her own name She needed some money. Consequently, she mortagaged the house in favour of the petitioner Gordran Das. Oswal resident of Udaimandir. Jodhpur, and his brothers. The mortgage was alleged to be anomalous Thereafter Mst. Noli executed a rent-note in favour of Gordhan Das and his brothers. Subsequently, a suit was filed by Gordhan Das and others for eviction of the property and recovery of arrears of rent A decree for ejectment and arrears of rent was passed in favour of the plaintiffs. In execution of that decree, Gordhan Das and his brothers were put in possession of the property, excepting one room, on February 6, 1964, through the process of the court After some time possession over the said room was also given to the mortgagees. The mortgagees put their locks on the various apartments. On March 24, 1964, Gordhan Das and others kept sundry articles in the rooms. On april, 1964, Shesh Mal, brother of Gordhan Das went to the house and saw that non-petitioners Nos. 2 to 6 were living therein, after breaking open the locks put by the mortgagees. The same day first information report was lodged at the Police station, Division B, Jodhpur, about this happening. The Police investigated the matter and put up a challan against the non-petitioners Nos. 2 to 6 for their trial under Sections 448 and 380, IPC. , in the court of Munsiff-Magistrate, Jodhpur City. The case was then transferred to the court of learned Munsif-Magistrate, Jodhpur district. The accused pleaded not guilty to the charges under Sections 448 and 380, I. P. C. The prosecution evidence was then recorded. The accused pleaded that they had never been "dispossessed of the property by the order of the court and that they were in consistent possession. The pleas of the accused were found to be false and the trial court held that the accused committed of-fence. s under section 448, I. P. C. . by breaking open the locks of the house in dispute. All the accused, who were convicted, were given benefit of Section 3, Probation of offenders Act, 1958, excepting the accused Bhinya Ram, who was sentenced to pay a fine of Rs. 100/- only, in default of payment of fine to undergo simple imprisonment for a period of one month. Learned Magistrate further directed that the house, excepting the one room, should be restored to the complainants. On an appeal taken against the above judgment, learned Additional Sessions Judge No. 2, Jodhpur, Shri Ratan Lal Shah, maintained the convictions of the accused persons under S 448, I. P. C. , as also the sentence passed against the non-petitioner Bhinya Ram. He, however, set aside the order of restoration of the property to the complainants, holding that no such order could have been made under Section 522, Cr. P. C.
(2.)AGGRIEVED against the above finding of the appellate court, regarding setting aside the order of restoration of the property to the complainants, the present revision petition has been filed by Gordhan Das. Contention of learned counsel for the petitioner is two-fold his first contention is that the appellate court went wrong in holding that Section 522, Cr. P. C. was not applicable to this case. His second grievance is that learned Additional Sessions Judge had no jurisdiction while hearing the appeal and maintaining the conviction of Bhinya Ram to set aside the order of restoration of the property to the complainants. Such a power, according to learned counsel, vested in the High Court and was subject to revision under section 439, Cr. P. C. , and was not subject to appeal.
(3.)AS for the first point, learned coun-sel for the petitioner has argued that as bhinya Ram and others broke open the lock of the house and made entry therein and as the property had already been made over to the complainants through the process of the court, it should be assumed that the offence was attended by criminal force and as such the trial court was justified in restoring the property to the complainants. Learned counsel further argued that the appellate court wrongly interpreted the language of Sub-section (1) of Section 522, Cr. P. C. , by holding that the offence was not attended by criminal force.
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