Honble SINHA, J.–Leave granted in both the matters.

(2). These two appeals being inter related were taken up together for hearing and are being disposed of by the common judgment.

(3). Vimalben Ajitbhai Patel (Appellant in Civil Appeal is the mother in law of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal and respondent No.2 in Criminal Appeal) while she alongwith her husband are the appellants in the Criminal Appeal. For the purpose of disposal of these appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1 while her husband Ajitbhai Revandas Patel is being described as Appellant No.2.

(4). Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel (son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a complaint petition was filed by the 3rd respondent against her husband and the appellants alleging commission of an offence under Sections 406 and 114 of the Indian Penal Code. In the said complaint the 3rd respondent accepted that her husband had incurred huge losses in the business in United States. Appellants were granted bail subject to the condition that they would not leave India without prior permission of the Court. Allegedly on the premise that Appellant No.2 requires medical treatment, an application for permission was filed in October 1997 but they left India without obtaining the same from the Court.

(5). An application was filed for cancellation of the bail which was rejected by the Metropolitan Magistrate as also by the Sessions Judge. The 3rd respondent filed an application before the High Court being Special Criminal Application NO.1360 of 1997. The said application was allowed by the High Court by its order dated 18th November, 1997 cancelling the bail of the appellants. The learned Metropolitan Magistrate was directed to issue Standing Warrant of arrest against the appellants as and when they returned to India.

(6.) On an application filed by the 3rd respondent on 24th April, 1998 the husband of the appellant was declared an absconder and a public proclamation was issued in terms of Section 82(2) of the Code of Criminal Procedure attaching her properties if she did not present before the Learned Magistrate within 30 days from the issuance of the said publication. There is nothing on record to show that the said order was served on the appellants. It, however, is not disputed that on their failure to remain present within a period of 30 days their properties were subjected to order of attachment under Section 85 of the Code of Criminal Procedure. By an order dated 5th January, 2004 the District Magistrate was asked by the Leaned Metropolitan Magistrate to take further action in terms of Section 85 of the Code of Criminal Procedure by holding a public auction of the said properties. In the said order it was wrongly sated that the properties belonged to the appellants and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was the owner thereof.

(7). The 1st Respondent (tenant) and the subsequent auction purchaser filed an application before the High Court of Gujarat which was marked as Special Civil Application No.15377 of 2004 against the Mamlatder. A learned Judge of the High Court by an order dated 5th April, 2005 directed :-

"8. In view of the above, I am inclined to pass the following order:

8.1) Rule. By interim order it is directed that the Mamlatdar - Respondent No.1 shall proceed with the auction of the premises in question on condition that the auction which may be held shall be subject to the further condition that -

i) the possession of the premises shall be handed over by the Mamlatdar to the auction purchaser, after the conclusion of the proceedings as ordered hereinafter by the ULC Authority against the petitioner as well as respondent No.3;

ii) after the auction, it would be open to the Mamlatdar to notify the said aspect regarding the transfer effected by auction in the conspicuous part of the premises and such an intimation may a

Click Here to Read the rest of this document