iminal Appeal No 113 of 1965
Appeal from the judgment and order dated October 26 1964 of the Allahabad High Court in Criminal Revision No 803 of 1963
J P Goyal for the appellants
O P Rana and Atiqur Rehman for respondent No1
section K Mehta and K L Mehta for respondent No 2
B R L lyengar and B R G K Achar for the Intervener
The Judgment of the Court was delivered by Mudholkar J
The only point which falls to be decided in this appeal by certificate granted by the High Court at Allahabad is whether the District Judge has jurisdiction under section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil court under section 146 of the Code of Criminal Procedure to another civil court
It arises this way
Proceedings under section 145 Cr
PC were initiated by a Magistrate on the basis of a report of a police officer to the effect 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 section 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 section 145 Cr PC 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 section 1461 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 to the District Judge under section 24 CPC for transfer of the case to some other
court
The ground given was that in the execution case out of which proceedings under section 145 Cr
PC had arisen the same Munsiff had
made an order against him depriving him of costs
The Munsiff having no objection to the transfer the District Judge  transferred the case to the court of another Munsiff
The opposite parties that
is the appellants before us Ram Chandra Aggarwal and Kedar Prasad Aggarwal acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the transferee court to hear and decide the reference
Eventually evidence was led by both sides  and a finding given by the transferee court
This finding was in favour 395 of the second respondent
After receiving the finding the I Magistrate heard the parties and held that it was the second respondent who was in possession at the relevant date and passed an order under section 1456 Cr
PC pursuant thereto
A revision application was preferred by the appellants before the court of Sessions in which the objection was taken for the first time that the decision of the civil court was a nullity because it had no territorial jurisdic tion over the subject matter of the dispute
It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity
The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier
The appellants then took the matter to the High Court in revision
The appellants rested their revision application on the sole ground that section 24 CPC was not available in respect of a reference under section 1461 Cr
PC and that therefore the proceedings subsequent to the transfer of the reference from the court of one Munsiff to that of another are a nullity
The High Court permitted the point to be urged
The attack was based upon two grounds that the reference under section 1461 Cr
PC was to a persona designata and that the provisions of section 24 CPC were not available with respect to it
The second ground was that the proceeding before the civil court was not a civil proceeding within the meaning of section 141 CPC
The High Court negatived both the grounds on which the contention 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 section 24 CPC was based more on the ground that the reference under section 1461 Cr
PC 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 section 1461 is to a constituted court and not to a persona designata
In BalakrishnaUdayar vs Vasudeva Aiyar1 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 vs Dwarka Prasad2 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 of a class or as filling a particular characters Section 1461 Cr
PC empowers a Magis 396 trate to refer the question as to whether any and if so which of the parties was in possession of the subject matter of dispute at
the relevant point of time to a civil court of competent jurisdiction
The power is not to refer the matter to the presiding Judge of a particular civil court but to a court
When a special or local law provides for an adjudication to be made by a constituted court that is by a court not created by a special or local law but to an existing court it in fact enlarges the ordinary jurisdiction of such a court
Thus where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer of that court the reference cannot be said to be to a persona designata
This question is well settled
It is therefore unnecessary to say anything more on this part of the case except that cases dealing with the point have been well summarised in the recent decision in Chatur Mohan vs Ram Behari Dixit1
Now as to the argument based on the ground that the pro ceeding before the civil court is not a civil proceeding Mr Goyal s contention is that since the proceeding before the criminal court under section 145 is a criminal proceeding any matter arising out of it including a reference to a civil court does not lose its initial character of a criminal proceeding
In support of his contention he has placed strong reliance upon the observations of Jagdish Sahai J in Sri Sheonath Prasad vs City Magistrate Varanasi
2 In that case the learned Judge was called upon to consider the meaning of the expression civil court of competent jurisdiction occurring in section 1461 of the Code of Criminal Procedure
It was contended before him that the competency of the court is to be determined not merely with respect to the territorial jurisdiction of the court but also with respect to its pecuniary jurisdiction
The question arose because it was contended before him that the finding on a question of possession was recorded by a civil court which though it had territorial jurisdiction over the subject matter of the dispute the value of the subject matter was in excess of the pecuniary jurisdiction of the court
In the course of his judgment the learned Judge has observed that 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 proceedingand the idea of pecuniary jurisdiction of a court being foreign to the Code of Criminal Procedure it was not necessary to 1 1964 All
L J 256
2 AIR 1959 All
467 397 ascertain whether the court to which a reference was made under section 1461 Cr
PC 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
Two of the decisions are Adaikappa Chettiar vs Chandrasekharca Theyar1 and Maung Ba Thaw vs Ma Pin1 and also a decision of this Court which proceeds upon the same view
Thus in South Asia Industries P Ltd vs section B Sarup Singh1 it was held that where a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court
We would also like to refer to the decision of this Court in Naravan Row vs Ishwarlal1 in which it was held that there is no reason for restricting the expression civil proceeding only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits
Though this decision was concerned with the meaning of the words civil proceeding used in article 1331c of the Constitution the reasoning behind it sufficiently repels the extreme contention of Mr Goyal that a proceeding stemming from a criminal matter must always bear the stamp of a criminal proceeding
Then according to Mr Goyal when a magistrate refers a question as to which party was in possession at the relevant date what be does is to delegate that duty initially resting upon him to the civil court
In performing that duty the civil court would therefore be acting as a criminal court just as the magistrate would be doing where he has to decide the question himself
The two Privy Council decisions we have referred to sufficiently answer this contention
No doubt the Magistrate while discharging his function under the Code of Criminal Procedure under section 1451 would be exercising his criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the magistrates but when the magistrate refers the question to a civil court he does not confer a part of his criminal jurisdiction upon the civil court
There is no provision under which he can clothe a court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction We are therefore unable to accept the contention of Goyal
Mr Iyengar tried to put the matter in a somewhat different way
In the first place
according to him  if we hold that the proceeding before the civil court is a civil proceeding then all the rules of procedure contained in the Civil Procedure Code
including those relating to appeals or revision would apply to the proceeding
1 74 IA 264
2 61 IA 158
319662 SCR 756
4 AIR 1956 SC1818 398 he points out would be contrary to the provisions of section 1461 P of Code of Criminal Procedure which bar an appealreview 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 section
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 section 1461 entertained by a civil court not being an original proceeding the provisions of section 141 CPC are not attracted and that therefore
those provisions of the Civil Procedure Code which relate to suits are not applicable to a proceeding undertaken by a civil court upon a reference to it under section 1461 of the Code of Criminal Procedure
A number of cases dealing with this point were brought to our notice either by him or by Mr Goyal
It seems to us however that those cases are not relevant for deciding the point which is before us
In passing however we may mention the fact that a full bench of the Allahabad High Court has held in Maha Ram vs Harbans1 that the civil court to which an issue on the quest ion of proprietary rights has been submitted by a revenue court under section 271 of the Agra Tenancy Act 1926 has jurisdiction to referthe issue to arbitration under paragraph I of Schedule II of the CP C
This decision is based upon the view that by virtue of section 141 CPC the provisions relating to arbitration contained in the second schedule to the Code of Civil Procedure before the repeal of that schedule applied to a proceeding of this kind
Similarly recently this Court has held in Munshi Ram vs Banwarilal2 that under section 41 of the Arbitration Act and also under section 141 CPC it was competent to the court before which an award made by an arbitration tribunal is filed for passing a decree in terms thereof to permit Parties to compromise their dispute under O XXIII r 3 CPC
Though there is no discussion this Court has acted upon the view that the expression civil proceeding in section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a gurdian etc
but that it applies also to a proceeding which is not an original proceeding
Thus though we say that it is not an original to consider in this case whether
the proceeding before the civil court is a civil proceeding as contemplated by section 141 or not there is good authority for saying that it is a civil Proceeding
All that we are concerned with in this case is whether 1 ILR 1941 All193 2 ILR 1962 SC903
399 the provisions
of section 241b of the Code of Civil Procedure are available with respect to a proceeding arising out of a reference under section 1461 Cr
The relevant portion of section 24 may therefore be set out
It reads thus On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard or of its own motion without such 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 section 1461 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 section 241b of the Code of Civil Procedure it would appear to us to be something going on in a court in relation to the adjudication of a dispute other than a suit or an appeal
Bearing in mind that the term proceeding indicates something in which business
is conducted according to a prescribed mode it would be only right to give it as used in the aforesaid provision a comprehensive meaning so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone
In a recent case Kochadai Naidu vs Nagavasami Naidu1 Ramachandra lyer J as he then was was called upon to consider the very question which arises before us
The learned Judge held 1 ILR 400 that a proceeding before a civil court arising out of a reference to it under section 1461 Cr
PC can be transferred by the High Court or District Court under section 24 CPC because it is in any case a proceedings
He has also considered this question from the angle of the nature of the proceeding and expressed the view that the proceeding was a civil proceeding to which the procedure for suits could with the aid of section 141 CPC be applied
If indeed the term proceeding in section 24 is not confined to a civil proceeding there is no need whatsoever of taking the aid of section 141 CPC
Upon this view we dismiss the appeal
Appeal dismissed


Summary:
Under section 1461 Criminal Procedure Code a Magistrate referred to a Civil Court of competent jurisdiction the question as to which of the parties was at the relevant point of time in possession of the subject matter of dispute in a proceeding under section 145 Cr
Under section 24 Civil Procedure Code the District Judge transferred the reference to another Civil Court
It was contended that the District Judge acted without jurisdiction because i the reference was to a persona designata and ii the provisions of CPC did not apply to the proceeding as it was not a proceeding in a court of Civil jurisdiction within the meaning of section 141 CPC HELD i Where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer of the court the reference cannot be said to be to a persona designata
The power unders 1461 is not to refer the matter to the presiding Judge of a Civil Court but to a court
396A C
iiThe provisions of the Civil Procedure Code apply generally to a proceeding before a civil court arising out of a reference made by Magistrate under section 1461 Cr
PC F399 E F Adaikappa Chettiar vs Chandrasekhara Thevar 74 IA 264 Mamg Ba Thaw vs Ma Pin 61 IA 158 and South Asia Industries P Ltd vs section B Sarup Singh 1965 2 SCR 756 applied
Section 24 CPC refers to other proceeding in any court sub ordinate to it and not to a civil proceeding pending before a subordinate court
The term proceeding is comprehensive enough to include all matters coming up for judicial adjudication and is not confined to civil proceedings alone and therefore there is no need to invoke section 141 VPC 399 F H Obiter The proceeding before the civil court is a civil proceeding as contemplated by section 141 CPC 398 F H A proceeding stemming from a criminal matter does not always bear the stamp of a criminal proceeding
397 D E Sri Sheonath Prasad vs City Magistrate Varanasi AIR 1959 All 467 disapproved
The Magistrate when he refers the question to a civil court does not confer a part of his criminal jurisdiction upon the civil court
Under section 1461D CrPC neither an appeal nor a revision lies against the finding of the civil court in the reference because of the express provision and not because the Proceeding before the civil court is not a civil proceeding
398 A C 394