ORDER
K.P. Mohapatra, J.
1. This revision is against the order passed by the Executive Magistrate, Berhampur on 25-7-1989 directing refund of the bid amount of Rs. 4750/- for auction of the disputed land for the year 1984-85 in favour of the opposite party.
2. A few facts may be stated in brief. Opposite party Satyabadi Purohit initiated a proceeding under Section 145, Cr. P.C. (M.C. No. 462 of 1984) in the Court of the Executive Magistrate, Berhampur, in respect of the disputed land belonging to deity Shri Sapne-swar Mohaprabhu claiming as a trustee. After expiry of two years he ceased to be the trustee, but did not voluntarily hand over charge of the temple and its properties to petitioner Harikrushna Purohit who was appointed as the trustee of the deity. He, therefore, moved the Commissioner of Endowments and obtained delivery of possession of the temple and the properties on 5-1-1987 and 16-2-1987 respectively from opposite party Satyabadi Purohit. In view of the changed position with regard to appointment of trustee, the proceeding under Section 145, Cr. P.C. was dropped on 18-5-1987.
In respect of the standing crops of the disputed land the Revenue Inspector, Pata-pur was appointed as the custodian. He deposited the bid amount of Rs. 4750/- in the Court of the Executive Magistrate on 6-9-1987. Petitioner Harikrushna Purohit being the trustee of the deity filed an application before the Executive Magistrate for refund of the deposited amount which was allowed by order dated 14-9-1987. Opposite party Satyabadi Purohit filed a criminal revision before the learned Sessions Judge, Berhampur, who by his order dated 3-5-1988 set aside the order dated 14-9-1987 and remanded the case to the Court of the Executive Magistrate with directions. After remand, the Executive Magistrate on 25-7-1989 passed the impugned order directing that the amount of Rs. 4750/-be refunded to opposite party Satyabadi Purohit on the ground that on the date of the preliminary order he was in possession (sic) he disputed land on behalf of the deity and continued in such possession till 16-2-1987. It is this order which has been challenged in the criminal revision.
3. Mrs. R. Shah, learned counsel appearing for the opposite party raised preliminary objection to the extent that the impugned order was passed under the provisions of Section 452 (1) and (2). Under Section 454, Cr. P.C. an appeal will lie to the Court of Session and not a criminal revision and so the criminal revision in this Court is not maintainable.
4. In support of her contention she has relied upon (1986) 61 Cut LT 355, Hussain Jan Suleman v. Bhaktawar. In the said decision it was held as follows:–
“Judicial opinion is thus consistent that the Executive Magistrate, while passing an order either cancelling or dropping a proceeding under Section 145 of the Code can, at the same time, give direction with regard to disposal of property both movable and immovable. After passing such order, he does not become functus officio. Even thereafter in an ancillary proceeding under Section 452(1) (identical to Section 517(1) of the old Code) he can in accordance with law pass orders with regard to disposal of property attached in the proceedings.”
The above proposition is fully applicable to the facts of this case. It will appear from the averments in the petition of the petitioner Harikrushna Purohit that the 145 proceeding was dropped on 18-5-1987. Patently, while dropping the proceeding the Executive Magistrate did not pass any order for disposal of the bid amount of Rs. 4750/-. On a subsequent application being made by the said petitioner the impugned order was passed. Such petition for refund, in words for disposal of property, was substantially under Section 452 (1) and (2). That being so, the impugned order is appealable under Section 454, Cr. P.C. If the Executive Magistrate would have passed the order of disposal while dropping the 145 proceeding, some other consideration would have arisen with regard to maintainability of a revision, because the main order dropping the 145 proceeding is revisable by the appropriate Court. But that question has not arisen in the case and so I do not propose to express any opinion with regard to it and reserve the same for an appropriate case.
5. For the reasons stated above, the criminal revision is not maintainable in this Court. Petitioner Harikrushna Purohit should have been advised to prefer an appeal in the appropriate Court under Section 454, Cr. P.C. The criminal revision petition shall, therefore, be returned to him for presentation in the appropriate Court. The criminal revision is disposed of accordingly.