The Supreme Court has observed that the limitation of 30 days would not apply in preferring an application under Section 456 of the Criminal Procedure Code seeking restoration of immovable property, if the Trial Court had passed an order directing to handover the case property to the, while convicting the accused.
In this case, the landlord's eviction suit against tenants was decreed and in execution of the decree, the possession was delivered to landlord. On the same day, the tenants trespassed into the house and forcibly took possession. 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.
Later, after the High Court dismissed the appeal, the complainant filed an application under Section 456 CrPC 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 also added that if the Court trying the offence has not made such an order, the Court of appeal, confirmation or revision can also make such an order 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. "