MUSSTT SUKURUN NESSA Vs. TAJAMUL ALI BARBHUIYA

JUDGEMENT

(1.) HEARD Mr. R. Dev, learned counsel for the petitioners. None appears for the respondents inspite of service of notice.

(2.) THE grievance raised by the petitioner in this petition is against an order dated 7.4.05 passed by the learned Executive Magistrate in Misc. Case No. 258m/04. THE aforesaid order is quoted in its entirety.

(3.) THE materials available on record disclose that the proceedings drawn up under Section 144 CrPC is relating to the disputed land measuring 2 Bigha 3 Katha 12 Chatak in Case No. 258m/04 and for attachment under Section 146 CrPC. THE respondent/first party on certain point time approached the Civil Court for getting appropriate relief. THE learned Executive Magistrate also held that the matter in dispute is entirely of civil nature and it can be solved in the Civil Court for permanent solution. THE learned Sessions Judge also found that the continuation of the proceeding would be a misuse of the process of the Court and accordingly the learned Magistrate rightly dropped the proceeding. But the order of attachment is still continuing as the first party/respondent is not approaching the trial Court, if he is aggrieved by the action of the present petitioner. THE order passed by the learned Magistrate as well as by the learned Sessions Judge clearly disclose that the dispute involved pertains to civil dispute and in that view continuation of the proceeding would be abuse of the process of law and in that event it would have been just and proper for the learned Magistrate to pass an order restricting himself and directing the first party/respondent to approach the Civil Court within a certain period without allowing to continue the attachment order inasmuch as if the first party/respondent requires any such urgent interim protection from the Court he would very well be entitled to obtain such an order from the Civil Court by way of injunction. That was not done in the instant case leading to such a situation by which the petitioner is being deprived of enjoyment of his right, due to continuation of the attachment order. From the impugned orders it appear that likelihood of the breach of peace is not continuing till now.