Radhey Shyam vs State of Uttarakhand and Ramesh Kumar

Hon''ble Prafulla C. Pant, J.—Heard.

By means of this petition, moved u/s 482 of Code of Criminal Procedure, 1973, the petitioner has sought quashing of the order dated 17.10.2011, passed by Sub Divisional Magistrate, Hardwar, in Case No. 56 of 1974, relating to proceedings u/s 145 and 146 of Cr.P.C.

Brief facts, of the case, are that in respect of property situated in village Jagjitpur, a dispute arose relating to possession relating to which proceedings u/s 145 of Cr.P.C., were drawn in the year 1974, and the property was attached. Thereafter, Suit No. 27 of 1978, was filed by the present respondent no.3 Ramesh Kumar (plaintiff) against the present petitioner Radhey Shyam (defendant) and others relating to declaration of ownership, and for removal of the construction.

After hearing the parties, the then Munsif, Hardwar vide his judgment of decree dated 23.11.1983, passed in Suit No. 27 of 1978, decreed the suit for declaration of title in favour of the plaintiff, and further directed the defendants to remove his construction. The appeal filed against said decree was dismissed vide order dated 12.08.1992, passed by Additional District Judge, Hardwar, in Civil Appeal No. 85 of 1983. The present petitioner appears to have further challenged the decree passed by the trial court and affirmed by the appellate court before High Court. This court vide its judgment and order dated 18.07.2007, passed in Second Appeal No. 818 of 2001, dismissed the appeal filed by the present petitioner.

The Sub Divisional Magistrate, Hardwar, vide its impugned order dated 16.05.2011, in view of the decree passed by the civil court, as mentioned above withdrew the attachment order dated 7.11.1974, and directed that the property be given in the possession of Ramesh Kumar (present respondent no.3).

Learned counsel for the petitioner submittedthat Sub Divisional Magistrate, has no power toexecute the decree passed by the civil court, as such, the impugned order is erroneous in law. However, in view of the facts discussed above, this court finds no illegality in the order passed by the Magistrate, nor can the impugned order be said to have been passed in exemption of the decree.

Therefore, the petition u/s 482 of Cr.P.C., is dismissed summarily. (Stay Application No. 1419 of 2011 stands disposed of).