CHACKO Vs. VARKEY

JUDGEMENT

(1.) SO far as the merits of the case are concerned, it has to be observed that, in the order of 31st March 1951, the Magistrate had specifically referred to the fact that the obstruction petition filed by the petitioner was being enquired into by the civil court, and he stated therein that the attachment and the receiver were to continue only until the civil court had made a pronouncement on the question of possession in the enquiry on the obstruction petition. It is admitted that the obstruction petition was dismissed by the Munsiff's Court. A revision petition, C. R. P. No. 575 of 1951, filed in this court by this petitioner against the dismissal of the obstruction petition was heard by me and has just now been dismissed. Therefore the petitioner has no right to remain in possession of the property and the criminal court has also no jurisdiction to continue the attachment on the property and possession of the same with the receiver. The criminal court can continue the attachment only until a competent court has determined the rights of the parties or the person entitled to possession of the property. Commenting on section 146 of the Indian Code of Criminal Procedure which corresponds to section 144 of the Travancore Code of Criminal procedure, Chitaley says in his book on the Code of Criminal Procedure (1949 edition) Volume I, page 831 that, where a competent court has determined the rights of the parties to the subject of dispute or its possession the Magistrate ceases to have authority to "retain control of the property and that he should withdraw the attachment and deliver possession on the basis of such a judgment, and he cites Madhorao v. Amirkhan, A. I. R. 1943 Nagpur 246, Maung Tha Zan v. Maung Ba Gale, A. I. R. 1914 Lower Burma 218 and Juravan v. Ramsarekh, A. I. R. 1933 Patna 224 in support of the above proposition.

(2.) IT was contended by the revision petitioner's counsel that, even though the attachment and the receiver's possession were liable to be determined on the rejection of the obstruction petition, the First Class magistrate has acted wrongly in withdrawing the attachment and ordering possession to be handed over to the counter petitioner on the latter's application without notice thereon being issued to the petitioner. Since the attachment and the receiver's possession were liable to be determined on the disposal of the obstruction petition and the counter petitioner was clearly entitled to possession of the property on the strength of the order on the obstruction petition, the failure to issue notice to the petitioner is at worst only an irregularity. IT does not vitiate or render void the Magistrate's order withdrawing the attachment and directing the receiver to hand over possession of the property to the counter petitioner. In Madhorao v. Amirkhan A. I. R. 1943 Nagpur 246, it has been held: "the power of a Criminal Court to hand over possession to the successful party on the decision of a Civil Court is not to be attributed to the exercise of any judicial function under Section 146. The judicial possession based on attachment under S. 146 ends when the order of a competent Civil Court has been pronounced, but the possession of the Court on behalf of the successful party, which originated by the judicial act of attachment, may properly continue even though the right to attach under Section 146 has come to an end. Henceforward, the Court can remain in lawful possession on behalf of the successful party and hand over its possession to it. " In the circumstances, I hold that this Criminal Revision petition is without any substance and dismiss the same. Dismissed.