CHARAN NAIK AND ORS. Vs. KIRTAN MOHANTY

JUDGEMENT

(1.) SHORT but significant point which is raised in this revision is as to whether a proceeding under Section 145 of the Code of Criminal Procedure, 1973 (in short, the Code') and attachment order under Section 146 of the Code are maintainable during the pendency of a civil suit between the parties.

(2.) THE second party member in Criminal Misc. case No. 261 of 1992 of the court of Sri M.K. Mohapatra, Executive Magistrate, Anandpur are the Petitioners, and the first party is the opposite party. While deciding the dispute under Section 145 of the Code on 29 -11 -1995 the Executive Magistrate passed the impugned order to keep the property under attachment and in the custody of the Revenue Inspector to avoid apprehension of breach of peace and until claims of the parties are adjudicated in Title. Suit No. 36 of 1990 on the ground that he was unable to determine as to which party was in possession of the disputed land on the date of preliminary order or two months prior to that Petitioners inter alia challenge legality of the said order.

(3.) THE 2nd party members, however, denied to the title and possession claimed by the 1st. party. They have claimed that the story of sale and purchases are not true and that after the death of Banshidhar they are in possession of the case land having right, title and interest therein. They have further stated that 1st. party's prayer for appointment of receiver was rejected by the civil court on the ground of absence of prima facie case and that the proceeding under Section 145 of the Code is not maintainable in view of pendency of the civil suit.