BALIWALA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS criminal revision u/s. 397/401 of Code of Criminal Procedure, 1973 (for short `the Code') hereinafter is directed against the order dated 11. 3. 2005 passed by Additional Sessions Judge No. 3, Jodhpur (for short `the revisional Court' hereinafter) in Criminal Revision No. 11/2000, whereby the revisional Court set aside the order dated 10. 12. 1998 passed by Executive Magistrate, Jodhpur in Criminal Case No. 7/98. By order dated 10. 12. 1998, the executive Magistrate attached the disputed property u/s. 146 of the Code and appointed SHO, Police Station Khanda Falsa as receiver and directed him to take over the disputed property in his custody.

(2.) THE facts and circumstances giving rise to the instant revision petition are that a proceeding u/s. 145 of the Code was initiated before the Executive Magistrate. After drawing the preliminary order as envisaged u/s. 145 of the Code, the notices were issued to the parties and after hearing the parties, the Executive Magistrate considered the case to be one of emergency and, therefore, thought it fit to attach the property in order to avoid the breach of peace with regard to the disputed property. THE order of attachment came to be challenged before the revisional Court on the ground that there is a civil suit with regard to the disputed property pending in the civil Court and, therefore, a parallel criminal proceeding should not be allowed to continue. THE revisional Court came to the conclusion that when the act of pendency of the civil suit was brought to the notice of the Executive Magistrate, then it was not proper for the Executive Magistrate to proceed u/ss. 145 & 146 of the Code. Accordingly the revisional Court allowed the revision petition filed by non-petitioner No. 2, set aside the order impugned therein dated 10. 12. 1998 attaching the property and appointing receiver, and also quashed the proceeding u/s. 145 of the Code.

(3.) ONE Smt. Kisarbai, mother of the petitioner and non- petitioner No. 2 filed a suit for permanent and mandatory injunction against her son Jugal Kishore present non-petitioner No. 2 in the Court of Civil Judge (Junior Division) Jodhpur City, Jodhpur in the year 1998. On 3. 4. 1998 non-petitioner No. 2 appeared. Alongwith the suit, an application u/o. 39 Rr. 1 & 2 of the Code seeking temporary injunction was also filed. The application seeking temporary injunction came to be dismissed by the civil Court on 12. 8. 1998. Appeal against the order dated 12. 8. 1998 came to be filed before the District Judge, Jodhpur which subsequently was transferred to Additional District Judge No. 3, Jodhpur. During pendency of the appeal, Kesarbai died and her son, present petitioner-Baliwala withdrawn the appeal as also the main suit pending before the Court of Civil Judge, City, Jodhpur. Thus, no temporary injunction was granted in favour of either parties. From the facts noticed above, it is more than clear that firstly on the date of order impugned, no civil suit was pending between the parties in the civil Court. More so, the suit before the civil Court was not referable to ownership or right to possession but it was for mandatory injunction simplicitor. In the suit neither ownership nor right to possession was claimed.