Munia Servai vs Thangayya Onturiyar and Others

Yahya Ali, J.—Mr. Viswanatha Sastri, learned advocate for the respondents, raises an objection in famine against the admissibility of this

application for stay of delivery of possession of the disputed lands to the respondents and for continuance of the lands in possession of the village

Munsiff any further. His argument is that this Court has no jurisdiction to entertain such a petition, since the only provision of law upon which it

could possibly be founded, viz., Section 561-A Criminal Procedure Code does not confer any new or additional powers on this Court and this

Court has no inherent power to appoint a Receiver in proceedings that come up u/s 145, Criminal Procedure Code in revision before it. For this

position reliance is placed on the decision of a Bench of this Court in Marudayya Thevar Vs. Shanmugasundara Thevar and Another, . There an

application was made asking this Court to appoint a Receiver pending disposal of an application to revise an order passed by the Magistrate u/s

145, Criminal Procedure Code. The learned Judges constituting the Bench held that the High Court has no jurisdiction to entertain such a petition

pending disposal of a Criminal Revision Petition. A further contention was pressed before the Bench that this Court has all the powers that the

Magistrate has got in the enquiry u/s 145, Criminal Procedure Code. This contention was repelled with the following observations :

Even assuming for the sake of argument that the High Court has that power, it would not in the least avail petitioner. For, in the first place, the

Magistrate and therefore ex hypothesi, the High Court, can only appoint a Receiver while the enquiry is pending, and the enquiry is now over, and

in the second place, the Magistrate, and therefore again the High Court, can appoint a Receiver only where it is satisfied that a dispute likely to

cause a breach of peace exists, whereas now the Magistrate''s order has put respondent in possession of the property and there is no danger of a

breach of the peace, unless the petitioner intends to defy the order of the Magistrate, and the High Court would certainly not encourage a party

who announces his intention of doing so.

Mr. Venkatarama Sastri endeavoured to distinguish this ruling on the ground that the village Munsiff was appointed in this case by consent of both

the parties ; but that was when the case was pending enquiry. The reasoning in the portion of the Judgment extracted above still remains, as this is a

case of continuing the Receiver appointed after the termination of the enquiry. This Court cannot continue such a Receiver or appoint a new

Receiver unless it is satisfied afresh that a dispute likely to cause a breach of the peace exists.

Another point of distinction may perhaps be that, as it appears from the judgment in the Bench case, the respondent had been already put in

possession of the property, whereas in the present case the village Munsiff still continues in possession thereof. The real position is that the

respondents were deprived of possession on the 24th September, 1946, when the village Munsiff was appointed by the Court to take possession

of the lands and to harvest the crops. Mr. Venkatarama Sastri concedes that if the Bench decision is applicable to the facts of the case, the

preliminary objection has to prevail; but he endeavoured to distinguish it on the ground already stated.

I am of opinion that I am bound by the decision of the Bench, and I must, following it, hold that the application for stay of possession which

virtually means: the appointment of the village Munsiff as a Receiver cannot be maintained. The petition is dismissed.

In this view I have not gone further into the merits of the case and into the various questions involved, viz., about the occupancy rights of the

respondents, the nature of the regrant to the petitioner''s vendor, etc.