NAIM KHAN Vs. STATE

JUDGEMENT

(1.) A dispute arose between the applicant, on the one hand, and the opposite party no. 4. on the other, as regards the possession of certain agricultural property situate in village Daramilkana, district Saharanpur. The dispute traveled into the court of City Magistrate, Saharanpur and became the subject of proceedings under section 145 Cr. P. C. on 25th April, 1975 the learned Magistrate attached the disputed property on the ground of emergency but even so pro ceeded to try the case on merits and finally passed an order declaring the applicant to be entitled to the possession of the disputed property. Aggrieved by order, opposite party no. 4 filed a revi sion. The revision was heard by the 1st Additional District and Sessions Judge, Saharanpur, who by his order dated 30th October, 1975 allowed the same and set aside the order of the Magistrate holding that the proceedings under section 145 Cr. P. C. would be deemed to have come to an end in view of the attachment of the disputed pro perty under section 146 Cr. P. C. render ing it incompetent for the Magistrate to continue the proceedings or pass any other order under section 145 Cr. P. C. The order became final between the parties. Thereafter the applicant filed a civil suit no. 415 of 1975 against the opposite party no. 4 in the Court of the Munsif, Saharanpur for permanent in junction restraining the opposite party no. 4 from interfering with the possession over the land in dispute. The applicant also filed an application under Order 39, Rule 1 C. P. C. praying for the grant of temporary injunction. Thereupon the learned City Munsif made an order on 6th November, 1975, directing that the parties shall maintain status quo in regard to the property. Subsequently the aforesaid suit was transferred to the court of 4th Addi tional Munsif, Saharanpur. By his order dated 15- 11-1975, the learned 4th Addi tional Munsif, Saharanpur vacated the order dated 6th November, 1975 holding that opposite party no. 4 and not the applicant was in possession of the dis puted land. Aggrieved by the order, the applicant preferred an appeal in the court of District Judge, Saharanpur which has dismissed on 5-8-1976 Mean while, on 13th December, 1975, the opposite party no. 4 moved an applica tion before the Additional City Magis trate for an order declaring that the attachment had come to an end on the allegation that the 4th Additional Munsif, Saharanpur had upheld his possession and refused to grant an order of tempo rary injunction in favour of the appli cant. On this application the learned Magistrate made the following order on 18-12-1975. "The amount may be paid to him provided there is no stay from any other court, and provided he presents two reliable sureties and P. B. for applicant for Rs. 3000/- each who take the responsibility of paying the amount of Rs. 3000/- to the court as and when demanded. The aforesaid amount represented the sale proceeds of the crop of the attached property. This order was passed ex-parte. Subsequently the ap plicant made an application praying that the order may be recalled. By order dated 22nd December, 1975 the learned City Magistrate refused to recall the order and rejected the application. Feel ing aggrieved, the applicant went up in revision. The revision was heard by IIIrd Additional District and Sessions Judge, Saharanpur, who by an order dated 27-4-76 rejected the same. By this application under section 482 Cr. P. C. the applicant has challenged the validity of the orders dated 18-12-1975 and 22nd December, 1975 passed by the Additional City Magistrate and the order dated 27th April, 1976 passed by the Sessions Judge, Saharanpur and prayed that the same may be quashed. Learned counsel for the applicant argued that after attachment of the disputed property under section 146 (1) Cr. P. C. the learned Magistrate become functus officio and ceased to have power or jurisdiction to pass any order much less the impugned order directing payment of the amount in question to opposite party no. 4. He further argued that even if it were assumed that the learned Magistrate was competent to pass the impugned order under section 146 (1) still he could not do so in the absence of a final deter mination of a competent civil court declaring opposite party no. 4 to be en titled to the possession of the disputed land whereas the learned Magistrate has actually passed the order relying on the order dated 15-11-1975 of the 4th Addi tional Munsif, Saharanpur which repre sents an interim and not a final deter mination of such title. On this pro mises he urged that the order dated 18-12-1975 and 22-12-1975 passed by the learned Magistrate were illegal and without jurisdiction. The learned cousel particularly relied on a decision of this Court in Sohan Lal Burman v. State of U. P. (1977 ACC 169). Section 146 Cr. P. C. provides as under : (1) If the Magistrate at any time after making the order under sub section (J) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such no possession as it is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute, until a competent court has determined the rights of the parties there to with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil court make such arrangements as he considers proper for looking after the property of if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 : Provided that in the event of a receiver being subsequently appoint ed in relation to the subject of dis pute by any civil court, the Magis trate : (a) shall order the receiver ap pointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him ; (b) may make such other inci dental or consequential orders as may be just." Sub-section (2) enables a Magistrate to take measures in regard to the cus tody and management of the disputed property pending determination of title as regards possession between the parties by a Civil Court. The disputed pro perty will naturally include rents and profits that may be recovered from such property during the continuance of the attachment. Any order made by the Magistrate under this sub- section shall, however, be subject to the orders that the Civil Court may make in that behalf. Turning now to the present case there is no dispute that the amount in ques tion represented the sale proceeds of the crop grown over the disputed land during its attachment. By his order dated 18-12-1975 which he subsequently confirmed by his later order dated 26-12-1975, the learned Magistrate directed payment of amount to opposite party no. 4 on his furnishing security that he will refund the amount as and when required by the court. Properly construed, the order amounts to an order for interim custody and not an order for final disposal of the amount in question. On the interpretation given above the order is squarely covered by sub-section (2) of Section 146. It is true that in his order dated 20-12-1975 the learned Ma gistrate has incidently remarked that his order dated 18-12-1975 was just and proper in that it was in accordance with the order dated 15-11-1975 of the 4th Additional Munsif. But it does not mean that the learned Magistrate treated himself bound by the order of the Munsif and made an order accordingly. He relied on the order of the Munsif simply as a circumstance to justify his own order dated 18-12-1975. In this view if the learned Magistrate relied upon the order dated 15-11-1975 of the learned Munsif, that does not alter the nature of his order dated 18-12-1975 which is essentially an order under sub section (2) of section 146. So viewed the order is perfectly legal and within his jurisdiction. The argument to the contrary of the learned counsel for the applicant must fail. The view expressed above is not in conflict with the view taken by this Court in the case of Sohan Lal Burman (supra). In that case section 146 (1) fell to be considered by the Court. Dealing with the sub- section the Court ob served : "A perusal of this provision leads plainly to the result that on any of the three contingencies existing, viz. (1) in cases of emergency ; (2) when the Magistrate reaches the decision that none of the parties is in posses sion ; and (3) when he is unable to satisfy himself as to which of them was in possession ; he may attach the subject of dispute until a com petent court has determined the rights of the parties with regard to the person entitled to the possession thereof. Thus, as soon as any of the three situations is reached, and an attachment order is made, the proceedings under section 145 Cr. P. C. save as regards the withdrawal of attachment provided for by the first proviso to section 146 (1), came to an end before the Executive Ma gistrate. These observations do not mean that the Magistrate has no jurisdiction to pass any order under sub- section (2) of section 146 after he has attached the property in dispute. Accordingly the decision does not help the applicant. In these circumstances, I am of the opinion that there is no merit in this petition. It is dismissed accordingly. The stay order dated 13-5-1976 shall stand vacated.