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TMI Blog1966 (5) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... fect that a dispute likely to cause a breach of the peace exists concerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under S. 145 of the Code of Criminal Procedure. The learned Magistrate upon being satisfied about the possibility of a breach of the peace made a preliminary order under s. 145, Cr. P.C., attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims. In due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof. He, therefore, referred the case under s. 146(1) of the Cr. P. C. to a civil court for decision, as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the Property shall continue. The reference went to the court of the Munson within whose territorial jurisdiction the property was situate. But thereafter one of the parties Brij Gopal Binani, respondent No. 2 before us, made an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention was based. On behalf of the appellants Mr. Goyal has reiterated both the contentions. In fairness to Mr. Goyal it must be said that his attack on the order of the District Judge transferring the case under s. 24, C.P.C. was based more on the ground that the reference under s. 146(1) Cr. P.C. is not a civil proceeding than on the ground that the reference was to a persona designata. However, as he did not wish to abandon the other point we must deal with it even though Mr. B. R. L. Iyengar who appears for the State conceded that a reference under s. 146(1) is to a constituted court and not to a persona designata. In BalakrishnaUdayar v. Vasudeva Aiyar(1) Lord Atkinson has pointed out teh difference between a persona designata and a legal tribunal. The difference is in this that the determinations of a persona designata are not to be treated as judgments of a legal tribunal . In the central Talkies Ltd. v. Dwarka Prasad(2) this 'Court has accepted the meaning given to the expression persona designata in Osborn's Concise Law Dictionary. 4th edn. p. 263 as eta person who is pointed out or described as an individual, as opposed to a person ascertained as a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a proceeding even on reference made to a civil court retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and does not become a proceeding in the suit. Then he went on to point out that the criminal court still retains its jurisdiction because it could withdraw the reference from the civil court at any. time and also because the ultimate decision with the respect to the dispute between the parties was to be made by the Magistrate and not by the civil court. All this, according to the learned Judge, would show that the proceeding even:- before the civil court would not be a civil proceeding.and the idea of pecuniary jurisdiction of a court being foreign to the Code of Criminal Procedure it was not necessary to ascertain whether the court to which a reference was made under s. 146(1) Cr. P.C. had pecuniary jurisdiction over the subject matter of the dispute or not. This' decision ignores the vast 'body of authority which is to the effect that when a legal right- is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen all the rules of procedure contained in the Civil Procedure Code,. including those relating to appeals or revision would apply to the proceeding. This. he points out, would be contrary to the provisions of s. 146(1-P) of Code of Criminal Procedure which bar an appeal,review or revision from any finding of the civil court. From this he wants us to infer that the proceeding does not take the character of a civil proceeding even though it takes place before a civil court. We are not, impressed by this argument. If sub-s. (1-D) had:-, not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding, before the civil court is not a civil proceeding. The next contention-and it was the one pressed strenuously by him-was that a proceeding upon a reference under s. 146(1) entertained by a civil court not being an original proceeding the provisions of s. 141, C.P.C. are not attracted and that, therefore. those provisions of the Civil P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, the High Court or the District Court may at any stage- (a) (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or III.............................. It plainly speaks of other proceeding pending in any court subordinate to it and not only to the civil proceeding pending before a subordinate court. The decisions of the Privy Council and one decision of this Court which we have earlier quoted would warrant the application of the provisions of the Code of Civil Procedure generally to a proceeding before a civil court arising out of a reference to it by a Magistrate under s. 146(1) of the Code of Crimi- nal Procedure. The expression proceeding used in this section is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute. Looking to the context in which the word has been used in s. 24(1)(b) of the Code of Civil Procedure it would appear to us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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