Mahapratap Rudra Das Vs. Pravabati Das - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - e 24-4-1989. a motion was made before learned judge, family court, cuttack alleging appellant's failure to comply with the order granting maintenance without sufficient cause.a. pasayat, j.objection to the maintainability of an execution proceeding before the family court, cuttack having been negatived by the learned judge, family court, cuttack, this appeal has been filed.1. skeletal facts necessary for disposal of the appeal are as follows :pravabati das (hereinafter referred to as the 'respondent') moved the learned sub-divisional judicial magistrate, sadar, cuttack (in short, the 'sdjm') for a direction to grant maintenance under section 125 of the code of criminal procedure, 1973 (in short, the 'cr.p.c.'). she claimed to be the legally married wife of mahapratap rudra das (hereinafter referred to as the 'appellant'). according to her, appellant had sufficient means but he neglected and refused to maintain her. she claimed to have married the appellant as back as in the year 1954 according to hindu rites. claim of respondent was resisted by the appellant, mainly on the ground that there was no marriage as claimed learned sdjm allowed prayer for maintenance and directed the appellant to pay maintenance @ rs. 150 per month from the date of application i.e 24-4-1989. a motion was made before learned judge, family court, cuttack alleging appellant's failure to comply with the order granting maintenance without sufficient cause. appellant was asked to show cause as to why prayer of the respondent for action under section 125(3), cr.p.c. was not to be allowed.2. appellant filed objection to the show cause notice, primarily challenging maintainability of the application. it was alleged that since the order under section 125, cr.p.c. was passed by learned sdjm, learned judge, family court had no jurisdiction to execute it. reference was made to sub-section (3) of section 18 of the family courts act, 1984 (in short the 'act)' learned judge. family court held that sub-section (3) had no application because it related to a decree of order passed in a civil proceeding. it was observed that in respect of the order for execution proceeding had been initiated, sub-section (2) had application. the order passed by learned judge, family court, cuttack is the subject-matter of challenge in this appeal.3. mr. u.c. mahapatra, learned counsel for the appellant has urged this section 18 of the act had no application to the facts of the present case because the order in respect of which execution proceeding was initiated was not passed by the family court. mr. m.m. das appearing for the respondent however, submitted that in view of the provisions of sections 7 and 8 of the act, the contention merits no consideration.4. the jurisdiction of the family court is delineated in section 7 which reads as follows :'7. jurisdiction (1) subject to the other provisions of this act, a family court shall--(a) have and exercise ail the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and(b) be deemed, for the purpose of exercising such jurisdiction under such law to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the family court extends. ,explanation--the suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely :--(a) a suit or proceeding between the parties to a marriage for a decree of a nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or distribution of marriage;(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person ;(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;(e) a suit or proceeding for a declaration as to the legitimacy of any person;(f) a suit or proceeding for maintenance;(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.(2) subject to the other provisions of this act, a family court shall also have and exercise :(a) the jurisdiction exercisable by a magistrate of the first class under chapter ix (relating to order for maintenance of wife, children and parties) of the code of criminal procedure, 1973 (2 of 1974) ; and(b) such other jurisdiction as may be conferred on it by any other enactment.section 8 deals with exclusion of jurisdiction and pending proceeding. the section reads as follows :'3. exclusion of jurisdiction and pending proceeding--where a family court has been established for any area :(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section;(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under chapter ix of the code of criminal procedure, 1973 (2 of 1974) ;(c) every suit or proceeding of the nature referred to in the explanation to sub-section (1) of section 7 and every proceeding under chapter ix of the code of criminal procedure, 1973 (2 of 1974)--(i) which is pending immediately before the establishment of such family court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said code; and(ii) which would have been required to be instituted or taken before or by such family court if, before the date on which such suit or proceeding was instituted or taken this act has come into force and such family court had been established, shall stand transferred to such family court on which it is established.5. sub-section (2) of section 7 provides that family court shall exercise in addition to the jurisdiction conferred by sub-section (1) jurisdiction exercisable by a magistrate first class under chapter ix (relating to order for maintenance of wife, children and parents) of the cr.p.c. in the instant case, the application for execution had its genesia on the order under section 125, cr.p.c. which was pending before the establishment of the family court, before any magistrate was to stand transferred to the family court on the date on which it is established. according to mr. mohapatra, on the date the act came into force, no application was pending and therefore, the petition was not maintainable. the plemia misconceived, because after establishment of the family court, the jurisdiction exercisable by magistrate of first class under chapter ix is to be exercised by the family court. it is not in dispute that had the family court not been established, power under section 125(3), cr.p.c. would have been exercised by the magistrate. after establishment of the family court, obviously the power has to be exercised by the family court therefore, the family court had jurisdiction to deal with the matter. the objection filed by the appellant relating to the maintainability of execution proceeding was misconceived. however, the observations of the learned judge that section 18(2) of the act had application is not correct. the said provision relates to an order passed by the family court under chapter ix of cr. p. c. in the instant case, the order was not that of the family court, but of learned sdjm. the objection was rightly rejected.the appeal has no merit and is dismissed.r.k. patra, j.i agree.