Harendra Kumar vs State of U.P. and Others

Murlidhar, J.—This revision is directed against an order dated 27-2-1980 by which the Magistrate revived proceedings u/s 145 Code of Criminal Procedure in respect of immovable property which had been attached in these proceedings per order dated 11-8-1979 u/s 146(1) Code of Criminal Procedure. The order dated 11-8-1979 had in accordance with the then understanding of law directed that after attachment the property was to continue in attachment until the parties got their rights adjudicated by a competent civil Court. Later on clarification of the legal position by the Supreme Court in Ram Prasad Sahu and Others Vs. State of Bihar, that attachment u/s 146(1) by itself did not operate to terminate the proceeding u/s 145 the other party applied for revival of the proceedings and inspite of the applicant''s objection that application has been allowed by the impugned order.

It has been contended that the mere fact that the Supreme Court subsequently declared the view prevailing at the time of the order dated 11-8-1979 to be erroneous cannot legally justify the Magistrate in reviewing and revising that order when it had been allowed to become final by the parties. Having heard the parties I am not satisfied that the impugned order suffers from any infirmity calling for interference in exercise of the revisionai jurisdiction of this Court.

While the broad proposition that an authoritative pronouncement that a particular view of law was incorrect can generally be no ground for reopening any case decided on the earlier erroneous view is correct, in the present case the revival of the proceeding can be sustained on a narrower basis. The order dated 11-8-1979 merely stated that the property would continue attached till the title or right of the parties with regard to the possession thereof was determined by competent Court. This was according to the then prevailing view that the Court seized of the 145 Code of Criminal Procedure proceeding was not a competent Court to determine even the provisional right of possession till the decision by a regular competent civil Court. The Supreme Court decision changed this position. The Magistrate''s Court is now competent to provisionally decide the right of the parties to possession of the property pending final decision by a competent Court. After this clarification it was open to a party to seek determination of the right to possession by the Magistrate''s Court itself. The order dated 11-8-1879 was passed when the Court rightly regarded itself and may, therefore, be treated to have been incompetent to decide the right to possession in those proceedings. Subsequently when the right was recognised the Court may be considered to have become competent to decide the right to possession. I do not find anything irregular in a party then moving that very Court which had thus become competent to provisionally decide the right to possession and the Court allowing the request by the impugned order. Looked at in this way the impugned order can be sustained as a step in the lawful process of determining parties right by a competent Court in the light of the order dated 11-8-1979.

Alternatively even if the impugned order were to be regarded as technically illegal because of being an order reviewing a final order, I would not interfere in exercise of the revisionai jurisdiction on the ground that the impugned order advances justice without in any way prejudicing the applicant.

The revision, therefore, fails and is hereby dismissed. The stay order dated 10-3-1980 is vacated.