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The Supreme Court has observed that in preferring an application under Section 456 of the Criminal Procedure Code that seeking restoration of immovable property the limitation of 30 days would not apply, if the Trial Court had passed an order directing to handover the case property while convicting the accused.
The court has added that, "It would apply only if the Trial Court had not passed any order in respect of the case property while convicting the accused."
In this case, there was a decree filed by landlord for eviction of tenant which was passed and possession was delivered to landlord. The tenants on the same day took possession by trespassing forcibly into the house. The complaint filed by the landlord culminated in conviction of the tenants under Section 448 of I.P.C. The Trial Court also directed to hand over the case property to the complainant.
The complainant filed an application under Section 456 CrPC after the High Court dismissed the appeal for handing over the possession of the case property to him. The Trial Court rejected the application only on the ground that it had been filed beyond the period of 30 days from the date of order of the Appellate Court. The High Court affirmed the Trial Court order.
In appeal (Mahesh Dube v. Shivbodh Dube), the Apex Court bench comprising Justice Sanjay Kishan Kaul and Justice Deepak Gupta, referred to Section 456 of CrPC and said the Trial Court can pass an order for restoration of the possession of the property to the person who was forcibly dispossessed. The court added if such order has not made by the court, appellate court can make it while disposing of the proceedings pending before it and no limitation has been provided for the higher courts to make such order. The bench said that limitation of 30 days would not apply in this case because the Trial Court had already passed such an order while convicting the accused.
Allowing the appeal, the bench said: "In the present case, after the appeal filed by the respondents and their father was dismissed, the father of the present appellant applied for handing over possession to him in terms of the order already passed by the Trial Court while convicting the respondents and their father, in which eventually, the limitation of 30 days would not apply. It would apply only if the Trial Court had not passed any order in respect of the case property while convicting the accused. "
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