METAKI KHADANGANI Vs. ADIKONDO PODHANO

JUDGEMENT

(1.) THE undisputed facts are as follows In Title Suit No. 39 of 1959 in the Court of the Munsif, Aska, the Appellant (Plaintiff) and the Respondent (Defendant No. 1) entered into a compromise decree, the essential terms of which may be extracted. The 1st Defendant namely Sri Adikondo Podhano be declared as the rightful owner with full right, title and interest in respect of all the suit lands and enjoy the same for ever subject to condition below. The first Defendant, in consideration of the aforesaid declaration, shall, within two months from today (14 -3 -1962), convey by registered deed of transfer, at his cost and deliver possession in favour of the Plaintiff his lands Ac. 1 -00 out of Ac. 1 -90 from the western side in Survey No. 143, Khata No. 127 of Ganeswarapur village in Digapahandi Taluk, District Ganjam and if the 1st Defendant fails to do so within the aforesaid period the Plaintiff shall stand as the absolute owner with fun right, title and interest in respect of item 3 of the plaint schedule and enjoy; the same for ever in her absolute right and shall be at liberty to execute this decree against the 1st Defendant for delivery of possession of the same, viz., Ac. 0 -90 of wet lands in Survey No. 142 in Patta No. 1 in Gopalpur village in Digapahandi Taluk in District Ganjam.

(2.) THE dispute between the parties is thus narrowed down to the simple question as to whether the judgment -debtor fulfilled the condition laid down in the compromise decree that he would execute a registered sale deed in respect of Survey No. 143 and deliver possession of the same within two months, that is, by 14 -5 -1962, so as to be absolutely entitled to the 3rd item of the plaint schedule land in Survey No. 142 (which is now the disputed land). Actually there is no dispute that though the judgment -debtor executed a registered sale deed on 26 -3 -1962 within two months, he failed to give delivery of possession of Survey No. 143 to the decree -holder within the stipulated time.

(3.) THE Magistrate gets jurisdiction only when he passes a preliminary order under Section 145(1), Code of Criminal Procedure on being satisfied that a dispute likely to cause breach of the peace exists concerning the land. In all cases, where a preliminary order is passed, attachment of land, which is the subject matter of dispute, is not mandatory. Under Sub -section (4), 3rd proviso, the Magistrate may attach the subject -matter of dispute pending his decision if the considers the case is one of emergency. Under Sub -section (5), the Magistrate shall cancel the preliminary order if he is satisfied that no such dispute, as mentioned in Sub -section (1), exists or has existed. On cancellation of his order under Sub -section (1), all further proceedings thereon shall be stayed. The object of attachment in case of emergency under Sub -section (1) is to have the subject -matter of the dispute under the custody and control of the Magistrate. Attachment means taking or apprehending a property by command or writ. Once the attachment is effected, the parties can no longer go upon the land. The control of the party actually in possession ceases on the attachment being effected. The reason behind the rule is clear. It is only in case of emergency, that is, when the apprehension of breach of the peace is imminent, that attachment is effected. The object can only be attained by preventing both the parties from going upon the land. Thus by attachment the Criminal Court gets complete dominion and control over the property in dispute. Once the Magistrate is in (sic) of the property and the parties are precluded from going upon the land, the land is not allowed to lie fallow as the party entitled to possession would be otherwise put to loss. It is, therefore, the duty of the Magistrate to see to the management of the property. It is put to auction and lessees are put in possession of the property. The usufruct or its value is deposited in Court to be appropriated by the party who is ultimately found to be entitled to possession either in the proceeding under Section 145, Code of Criminal Procedure or under a decree of a Civil Court. Thus though with the dropping of the proceeding the Magistrate ceases to have jurisdiction over the Section 145, proceeding and would not decide the question as to which of the parties is entitled to possession, he can go into the ancillary matter of deciding as to from whose possession the property was attached so as to restore it to him. This has been settled by a series of decisions of this Court -See : 23 C.L.T. 37 : A.I.R. 1957 Ori 92 ; : A.I.R. 1959 Ori 81 : 25 C.L.T. 340 ; : A.I.R. 1961 Ori 121 : 27 C. L. T. 23.