Hamir Singh vs Bhag Singh

H.S. Bedi, J.

While disposing of this petition on 7th November, 1994 I had given a positive finding that the applicant/petitioners had been wrongly dispossessed from the land in dispute and that they were entitled to the restoration of possession.

By the present application a prayer has been made that in the light of the above finding it would be proper that the auction money which had been deposited with the receiver during the period the land remained attached under Section 145 of the Code of Criminal Procedure should be given to the applicants.

Notice of the application was issued and in response thereto Mr. Mangat has appeared and has urged that as the civil suit with regard to the title of the property was still pending in the trial Court it would be proper that the money deposited should be kept in the custody of the receiver.

I have heard the learned counsel for the parties at length and have also gone through the documents on record. It is the positive finding recorded in my order dated 7th November, 1994 (which order has become final as the same has not been challenged any further) that the applicants had been wrongly dispossessed from the land in dispute and it was on that basis that a direction was issued that they be put back in possession within a period of three months from the date of the supply of that order.

Mr. Mangat, the learned counsel for the respondents has urged the additional point that as the judgment dated November 7, 1994 had become final it would not be open to me in the light of the provisions of section 362 of the Code of Criminal Procedure to alter or review the judgment in question. He has also cited Mosst. Simrikhia v. Smt. Dolley Mukerjee alias Smt. Chabbi Mukherjee and another, 1992(2) RCR (Crl.) 337 : AIR 1990 SC 1605. I have gone through the judgment cited and find that it is not attracted to the facts of the present case for various reasons. Firstly it is to be noted that in the order dated 7th November, 1994 the point as to the deposit of the amount which had been deposited with the Receiver has not been dealt with. Moreover in the aforesaid order I had given a positive finding that it would be in the interest of justice that the possession be restored to the petitioners as they had been wrongly dispossessed about 10 years earlier. In the cited case the matter had first come to the High Court by way of a Crl. petition for quashing the order of a Judicial Magistrate and the said petition had been dismissed as it had been found that there was no illegality in the order impugned. The party again moved another application before the High Court seeking the same relief on identical facts. The learned High Court Judge accepted the petition and quashed the proceedings. It was in the light of these facts that the Hon''ble Supreme Court observed that it was not open to the High Court to review its own judgment as there was a specific bar under section 362 of the Code of Criminal Procedure to that effect. As already mentioned above, in the case before me today the question with regard to the amount which was in the hands of the receiver had not been decided and even in that order I had recorded a specific finding that interference was called for to secure the ends of justice. The present order would, therefore, be read to mean as being one that would do complete justice to the petitioners.

This application is accordingly allowed and a direction is issued to the receiver to pay to the petitioners the amount deposited with him from time to time by way of auction money. The petitioners shall however recover the amounts on furnishing security before the receiver and after swearing affidavits, to provide restitution in case the civil suits are decreed against them.