SC: Application u/s 456 can’t be dismissed due to limitation if previous order passed within limitation wasn’t effectuated

Today, i.e. on 12th February 2019, in the matter of Mahesh Dube v. Shivbodh and Ors., pronounced that an application for restoration of possession of immovable property filed under Section 456 of Cr.P.C cannot be dismissed on the ground of expiry of limitation period if a prior order of restoration of possession by the trial court, which was within the limitation period, was not given effect due to the filing of appeal by the convict.

The Hon’ble Supreme Court observed that:

A bare reading of the Sub­-Section 1 of Section 456 clearly indicates that the Trial Court can pass an order for restoration of the possession of the property to the person who was forcibly dispossessed. The proviso no doubt lays down that no such order shall be passed after one month of the date of conviction. (Para 3)

Sub­Section 2 of Section 456 Cr.P.C.  provides 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. No limitation has been provided for the higher courts to make such order. (Para 5)

An application for restoration of possession of immovable property filed under Section 456 of Cr.P.C cannot be dismissed on the basis of limitation if the prior order of restoration by the trial court which was within the limitation period, was not given effect to due to the filing of appeal by the convict. (This inference has been drawn on the basis of Para 6 and Para 7)

Copy of judgement:Judgement_12-Feb-2019

-Tushar Kaushik

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