RAM PYARI Vs. SAIYAWATI AND ANOTHER

JUDGEMENT

(1.) This revision has been directed against the judgement and order dated 23.10.1990 and order dated 27.3.1989 passed by Vth Additional Sessions Judge, Aligarh in Criminal Revision No. 127 of 1989 and Sub Divisional Magistrate Koel, Aligarh in Case No. 4/11 of 1989 respectively. The Sub Divisional Magistrate by order dated 27.3.1989 allowed the application under Sec. 145 Criminal Procedure Code in favour of Smt. Ram Pyari and found that the possession of the property in question was with her within two months prior to 15.3.1986. During the proceeding suit property was attached under Sec. 146 Criminal Procedure Code and given in the custody of a receiver. By that order the learned Magistrate asked to send a copy of the order to the police station for doing needful presumably to deliver the possession of the property to Smt. Ram Pyari. Against the order Smt. Satyawati went in revision. The learned Additional Sessions Judge by his order dated 23.10.1990 allowed the revision and set aside the order dated 27.3.1989 passed by the Sub Divisional Magistrate Koel, Aligarh. Smt. Ram Pyari thereafter filed this revision and by an interim order the said order of the learned Sessions Judge was stayed. The revision was dismissed on 25.4.1991, but it was restored on 30.7.1991 on the application dated 2.5.1991 and it was ordered that the stay order shall remain operative until further order. By virtue of the stay order granted by this court it has been contended by the learned counsel for the revisionist that the receiver is still in custody of the suit property.

(2.) Learned counsel for the revisionist has submitted that the learned Judge while disposing of the revision has stated that since the civil suit is pending with regard to the property in question no proceeding under Sec. 145 Criminal Procedure Code is maintainable. By means of a supplementary affidavit a copy of the judgement of Civil Case No. 105 of 1986 has been filed. The judgement is dated 24.1.1994. Learned counsel has submitted that the civil case was with regard to the cancellation of the sale deed by which the property in question was passed on to the revisionist who received the possession at the time of execution of the sale deed. It has been contended that as the civil suit was filed in respect of cancellation of the deed only, the possession of the concerned property can well be decided in proceeding under Sec. 145 Criminal Procedure Code.

(3.) After considering the submission of the learned counsel and also in view of the aforesaid decisions it is now necessary to reconsider the matter along with the fact whether there was any apprehension of breach of peace. I find that on both the points the matter should be referred back to the court of sub Divisional Magistrate and for that matter the decision of both the courts should not stand on the way.