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TMI Blog1956 (7) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ahant of Sidha Math, Puri, who is the opposite party in the present revision. The stolen property consisting of ₹ 7000/- was recovered and seized and was in the custody of the Sub-divisional Magistrate. 3. Khetramohali Nayak, the petitioner herein, obtained a decree against the opposite party in a civil suit. That decree was passed against the opposite party in his personal capacity and it was not a decree against him in his capacity As the Mahant of Sidha Math belonging to Jagannath :Mahaprayu. 4. In execution of the said decree (Execution Case No. 55 of 1954) obtained by the petitioner against the opposite party, the Petitioner got this amount of ₹ 7000/- in the custody of the Magistrate attached and the Munsif of Puri s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te party : and that an application under Order 21, Rule 52, Civil P.C., cannot be enquired into by a Magistrate who tried the criminal case in which the money was seized. 7. All the contentions of the learned counsel are quite correct. Order 21, Rule 52, Civil P. C., does not contemplate an application to be filed by anybody. It only provides the mode of attachment of money in the custody of any Court and enacts that the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued. This provision contained in Order 21, Rule 52, Civil P. C., is, by the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the, decree-holder and any other, person, not being the judgment-debtor claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court. In the case of 'Visvanadhan v. Arunachalam, reported in 44 Mad 100 : (A), the Madras High Court held that when the property attached is in the custody of a Court, it is the duty of such Court to hold it at the disposal of the attaching Court, and it is the duty of the attaching Court, if the property attached is money, to call upon the custody Court to pay it into the attaching Court, and in other cases to provide for the realisation of the property, and to divide the money rateably between the attaching decree-holder and the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t think, covers a case of a claim as is made by the opposite party in his application to the Sub-divisional Magistrate. Even in the case of a claim by assignment or by prior attachment, the application should be one under Order 21, Rule 58, Civil P. C. 9. In my opinion, the learned counsel for the opposite party cannot rely upon the proviso to Order 21, Rule 52, Civil P. C., and contend that the Sub-divisional Magistrate has Jurisdiction to enter into the question of title of the opposite party, in an application either under Order 21, Rule 52 or under Order 21, Rule 58, Civil P. C. The Code of Civil Procedure is essentially and exclusively a Code relating to the procedure of the Courts of the Civil judicature. It is entitled as An Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Justice within the meaning of S. 237 of Act 8 of 1859; that the right to the moneys in question had been finally decided against the petitioner and that the Judge was right in withdrawing his order of attachment. This case, in my opinion, does not in any way help the learned counsel for the opposite party as the custody Court in that decision which decided the question of priority was, a Court of a Deputy Collector and consequently a Revenue Court. If moneys are in deposit in a Revenue Court realised by it from the defendants in a rent suit or in any such like matter, then that Court can invoke the provisions of the Civil Procedure Code, because the Code itself provides for extension of the rules therein to Revenue Courts. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application' should have been disposed of by the Sub-divisional Magistrate simply by saying that he cannot entertain the petition, filed under the provisions of the Civil Procedure Cods. In the Code of Criminal Procedure, the Magistrate exercising Jurisdiction under that Code are termed Magistrates 1st Class, 2nd Class or 3rd Class and many of the provisions of the Code never refer to or use the expression 'in the Court of a Magistrate'. 'Such Court' in Order 21, Rule 52; Civil P. C., refers only to a Civil Court being ordinarily a Civil Court in the country or a Revenue Court to which the provisions of the. Civil Procedure Code are made applicable. 10. In my opinion, therefore, the order is clearly without jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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