MATHAI VARGHESE Vs. KURIACKO CHACKO

JUDGEMENT

(1.) The short point that arises for determination in this petition is whether an Executive First Class Magistrate proceeding with an enquiry under S.145 Cr. P. C. in respect of an immovable property is bound to cancel the interim order passed under sub-s.(1) of S.145 or to stay the proceedings thereof and forward the records of the proceedings to a civil court of competent jurisdiction to decide the question whether any or which of the parties was in possession of the subject matter of the dispute if one of the parties to the proceedings filed a suit in such civil court in respect of the same subject matter.

(2.) The respondents herein are the complainants before the Executive First Class Magistrate and the petitioners are the opposite party. There was an interim order in the instant case under sub-s.(1) of S.145 Cr. P. C., placing the disputed property under attachment pending the dispute and appointing the Village Officer, Ettumanoor, in charge of the properties as the agent of the court below. The suits filed by the petitioners in respect of the same property in O. S. 214/69 and O. S. 216/69 are pending trial at the Munsiff's Court, Kottayam. It is admitted that these suits have been filed even some time prior to the proceedings under S.145 had been taken up by the lower court. However, the petitioners did not get either an order of interim injunction or any order appointing a receiver in respect of the property through the Munsiff's Court, though the suits are one for declaration as well as for a permanent injunction restraining the respondents herein from entering upon the property.

(3.) The contention of the learned counsel of the petitioners is that once the Executive First Class Magistrate took action under S.145(1) Cr. P. C. followed up by an attachment of the property by placing it in the hands of a Receiver under sub-s.(4) of S.145 Cr. P. C., the hands of the Magistrate are tied if a suit is filed in respect of the same subject matter and, therefore, be is bound to follow the provisions of sub-s.(5) of S.145 Cr. P. C. The sub-s.(5) reads as follows: