A claim petition related to attached property must be adjudicated on its merits; refusal to do so constitutes a jurisdictional error.

O R D E R

The revision petitioner in this case filed a claim petition before the Judicial First Class Magistrate-I, Kannur when the property which had been mortgaged with the petitioner bank was attached by the court under Sec.83 of Cr.P.C. The accused in a '138' case was reported to be absconding and so property of the accused was attached under Sec.83 of Cr.P.C. The claim petition happened to be filed by the bank since a notice was issued by the Tahasildar in connection with the proceedings under Sec.83 of Cr.P.C. initiated based on the order passed by the learned Magistrate.

2. The learned Magistrate did not go into the merits of the claim put forward by the revision petitioner and rejected the petition stating that no authority was placed before him as to the sustainability of the petition filed before that court. Even though Sec.84 of Cr.P.C. was not noted in the petition, all the ingredients to reckon that petition as the one filed under Sec.84 of Cr.P.C. were mentioned in detail in the petition and so the learned Magistrate was not justified in rejecting the petition at the very threshold, the learned counsel submits. In other words, according to the learned counsel, the learned Magistrate should not have declined jurisdiction to entertain the petition. It was stated in paragraph 4 of the claim petition that since the loanee Smt.P.Santha defaulted to pay the loan amount, which including interest as on that date was Rs.2,78,100/-, the petitioner Co-operative Bank applied for sale of the mortgaged properties and the concerned Sale Officer had initiated action. It seems an award was passed in the matter since it was stated that Execution Petition No.59/2002-2003 had already been filed for effecting sale of the property. Therefore, according to the learned counsel for the petitioner, there was every justification for allowing the application to the extend of the bank's interest over the property in question.

3. Sec.84(4) of the Code says that if a claim petition is allowed in whole or in part the aggrieved party may within a period of one year from the date of such order institute a suit to establish the right which he claims in respect of the property in dispute. Admittedly no suit was filed within the period of one year prescribed under Sec.84 (4) of the Code. Learned counsel for the petitioner would submit that no order rejecting the claim was passed by the learned Magistrate and as such the inhibition contained under Sec.84(4) of the Code may not be applicable to the facts of this case. The learned counsel appears to be right in his submission. The learned Magistrate did not go into the merits of the case as to whether the claim petition filed by the Co-operative Bank is sustainable in view of the facts stated therein. The learned Magistrate had actually declined jurisdiction and refused to adjudicate upon the claim made by the petitioner. If that be so, according to the learned counsel it has to be held that there was no order of rejection of the claim as contemplated under Sec.84 of the Code so as to oblige the claimant-bank to institute a suit before the civil court as required under Sec.84(4) of the Code. By rejecting the claim petition without adjudication the court below has committed gross illegality which has to be set right by invoking the revisional jurisdiction. Hence this Crl.R.P. is allowed. The impugned order is set aside. The matter is remanded to J.F.C.M.-I, Kannur. The learned Magistrate will treat the petition filed by the claimant as the one filed under Sec.84 of the Code and decide that petition in accordance with law. Petitioner will appear before that court on 24.9.2011.

N.K.BALAKRISHNAN, JUDGE.

Jvt