Smt. Bhuwan Kumari vs Akbar Ahmad and Others

P.C. Verma, J.—This is a writ petition filed by the Petitioner against the order of revision dated 15.10.2001 passed by the revisional court u/s 146 of the Code of Criminal Procedure.

Proceedings u/s 145, Cr. P.C. were initiated by the S.D.M., Nainital, in respect of the land in dispute and by an interlocutory order the S.D.M. attached the property in dispute. Against the order, a revision was filed. The revisional court allowed the revision on 15.10.2001, on the ground that the order passed by the S.D.M. was a non-speaking order and the proceedings u/s 145, Cr. P.C. should not have been initiated as the property was subject-matter of the suit and the parties were contesting for their title and possession in the suit.

It is the settled law that once the proceedings in the civil court are pending the proceedings u/s 145, Cr. P.C. should not be initiated.

Learned Counsel for the Petitioner placed reliance on the judgment passed by the Apex Court in the case of Prakash Chand Sachdeva Vs. The State and another, , and submitted that the proceedings u/s 145, Cr. P.C. could be proceeded with as it is the only question of possession and the title was not in dispute. Here in the present case, in the Civil Court an application under Order XXXIX, Rules 1 and 2, Code of CPC moved by the Plaintiff was rejected by the Civil Court, against which the Plaintiff/Petitioner filed an appeal before the High Court. During the pendency of appeal the proceedings u/s 145, Cr. P.C. were initiated. The High Court after noticing the order passed by the S.D.M. u/s 145, Cr. P.C. passed the following order:

This appeal is disposed of finally with the direction to the learned Civil Judge (Senior Division), Nainital to decide Original Suit No. 41 of 1996 finally within six months in accordance with law. Learned Counsel assured that their client shall extend full co-operation so that the suit may be decided within the period fixed and if necessary there may be day-to-day hearing to achieve the object. During the period the suit is decided, the parties shall not change the nature of the suit property and the Defendant Respondent shall not transfer or alienate it in any manner. It is further made clear that any observation or finding recorded in the impugned order will not prejudice the parties in final hearing. There will be no order as to costs.

Now the parties are bound by the aforesaid order. Therefore, there is no further occasion to allow the proceedings u/s 145, Cr. P.C. to continue.

Learned Counsel for the Petitioner further submitted that the Defendant has executed initially a power of attorney in favour of Respondent No. 1 and now he has executed power of attorney in favour of his wife. Therefore, the order passed by the High Court may not bind the holder of power of attorney. The argument of the learned Counsel for the Petitioner is misconceived. Once the Defendant himself has put to the conditions of the High Court, the holder of the power of attorney could not go beyond that and he will be bound by the conditions put in the judgment of the High Court as quoted above. Therefore, in my opinion it will not be appropriate to proceed with the proceedings u/s 145, Cr. P.C. The proceedings u/s 145, Cr. P.C. are hereby dropped.

The petition is disposed of accordingly.