BALIJEPALLI VENKATESHWARLU Vs. BALIJEPALLI BALI CHAKRAVARTI AND OTHERS

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Khammammeth recommending that the order passed by the First Class Magistrate, Madhira, dated 24-10-1956 be set aside and he be directed to pass suitable orders about collection of arrears of lease money from the first respondent and also to lease out the land afresh.

(2.) It appears in a proceeding under Section 148 of the Hyderabad Criminal Procedure Code which was started on 13th Shehrewar, 1352 Fasli, the Magistrate came to a conclusion that the evidence on record has not sufficiently established the actual possession of any party and ordered that the lands be attached and be kept under the custody of the Court till the parties get the right to the property settled by a competent civil Court. It was also directed that the mali patel should auction the lease hold interest for one year. This order was passed on 12th Third, 1353 Fasli. According to the provisions of Section 148, as it was then, such an order could not have been validly passed, because that section makes no provisions for such attachment pending the decision of the Civil Court or for making arrangement with regard to the auction of lease hold interest till the disposal of civil suit. However, though the matter went up in revision before the High Court it appears this point was not raised by the parties. But by the time the revision was disposed of the Section was amended and the provisions of the present Section 146 were incorporated therein. The High Court upheld the order of the Magistrate and dismissed the petition. Thereafter it seems the lease-hold interest was being auctioned for a few years. No doubt at one time in the year 1354 Fasli when the Court wanted to auction the lease hold interest for that year neither the malipatel nor the parties evinced any interest with the result that the auctioning of the lease-hold interest was rendered impossible. The Magistrate, therefore, closed those particular proceedings on the; responsibility of the parties with the future direction that if any party intends to raise the lands on lease or to arrange for its cultivation, he can appear and make a request to the Court in that regard As stated above at the instance of the respondent subsequently the lease-hold interest was put to auction and as a matter of fact he became the auction-purchaser in the year 1356 Fasli. When once thus he got into possession of the property the respondent never again approached the Magistrate and made a request for the auction of lease hold interest for subsequent periods. Curiously enough neither party resorted to Civil remedy till this day However after a lapse of ten years the revision petitioner applied to the Magistrate on 2nd November, 1955 praying for the profits of the lands to be collected from the person in possession and for making future arrangements for auctioning the lease hold interest. This petition was seriously contested by the present respondent No. 1. The learned Magistrate after hearing the arguments of the parties came to the conclusion that the order dated the 19th Khurdad, 1354, Fasli had the effect of vacating the attachment and he held that as there was no likelihood of breach of peace at the time when the order dated 19th Khurdar, 1354 Fasli was passed nor at any time thereafter nor even at the time the matter is pending before the Magistrate the request of the petitioner cannot be entertained. Thus he rejected the application. The petitioner went in revision and the learned Sessions Judge came to the conclusion that the order dated the 19th Khardar 1354 Fasli., neither in terms nor in effect had vacated the attachment; that the lands were still under attachment and that the only course open for the Magistrate was to wait till a decree was obtained by any of the parties. He further opined that though the parties did not choose to go to the civil court the remedy was still open and was not barred by limitation and hence, the petition filed by the petitioner before him must be allowed.

(3.) I have heard the argument of the learned counsel for the parties. There can be no doubt that the attachment effected by the order dated the 12th Third, 1353 F., was not vacated on 19-7-1354 F. The order of 19-7-1354 F-, was passed in file No. 65/5 of 1353 F., which was started in accordance with the direction given at the time of the passing of the final order. This file exclusively related to the auction of lease hold interest. As the parties evinced no interest the Magistrate did not think it necessary to continue the auction of the leasehold interest. A further direction given at the time makes it clear that the parties still had a right to approach the Magistrate and apply for auctioning the leasehold interest. As a matter of fact the party did exercise such right. Under these circumstances it is impossible to believe that the order of the Court in any way was directed towards the raising of the attachment or can at any rate be construed as an order vacating the attachment. The learned Magistrate was not correct in holding that the attachment was vacated. But, there is sufficient justification for him to hold that there was no likelihood of breach of peace at the time the order dated 19-7-1354 F., was passed or ever since. The parties evinced no interest in relation to the property then and though the respondent came in possession later on the petitioner never entered his appearance before 1904 but allowed the property to remain with the respondent. The conduct of the parties did suggest that in point of fact no dispute as would give rise to breach of peace did exist during this period. Thus, having regard to the conduct and the circumstances of the case, the learned Magistrate seems to have come to the conclusion that there was no likelihood of breach of peace then nor even at the time when he was passing the order and accordingly he made this observation in the impugned order. But it is significant that he failed to pass specific order vacating the attachment of the property evidently under the impression that the attachment was already vacated. The question is whether it can be concluded that the attachment by virtue of his observation ceased to exist in law. According to the proviso (a) (1) to Section 146 which was in force when the order was passed, the Magistrate attaching the subject matter of dispute could withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace in regard to the subject matter of dispute. In other words, though a final order has been passed under Section 145 Indian Criminal Procedure Code and the parties were directed to resort to civil remedy, the Magistrate had yet jurisdiction to pass an order raising the attachment as and when he was satisfied that there is no longer likelihood of breach of peace. It is the satisfaction of the Magistrate alone that is material for the purpose. Of course, he can as well wait till the Civil Court has determined the rights of the parties, but that is obligatory only when he is not satisfied that there is any apprehension of breach of peace. As soon as he comes to this conclusion it is within his powers to withdraw the attachment. Of course the Magistrate in this particular case did not pass such an express order and as observed above it was because he was under a mistaken notion that the attachment has already been raised but his intention is clear that he did not want that the property should remain under attachment. The learned counsel argues that this is not sufficient, in law for, in case the Magistrate is inclined to pass such an order it is also obligatory on him to give direction to whom the property should be handed over. It may be noted that the proviso to Section 146 Crl P.C. does not lay down any such direction. However in Narul Hasan and Other v. Mt. Majidan AIR 1944 All 210 it has been observed that unless it is agreed to whom the property should be made over, the Magistrate should keep the property attached until the question has been decided by a competent court. No doubt the property cannot be left to itself and it should be handed over to tome party in case it is released from attachment, but it all depends upon be particular circumstances of each case. When the properties are already in possession of a particular party no directions in express terms are necessary for the purpose. At any rate failure to give such direction does not render the order tainted in any manner. Such directions are essential in cases where the property is not in possession of any party. Thus it is clear that the order of he Magistrate contemplates that no attachment shall subsist and also that the party in possession shall continue in possession.