ASHRAFI SINGH Vs. BIDYAPRASAD NARAIN SINGH

JUDGEMENT

(1.) The question for our consideration is whether the Subordinate Judge has correctly decided that a Civil Court acting under Order XL of the Civil Procedure Code has power to appoint a receiver in supersession of the receiver appointed by the Magistrate under Clause (2) of Section 146 of the Criminal Procedure Code.

(2.) When, there is a dispute as to immoveable property likely to cause a breach of the peace, and the Magistrate, having made an order in the terms of, Section 145 of the latter Code, is unable to decide which of the parties was in actual possession at the date of such order, he is empowered by Clause (1) of Section 146 to attach the subject of dispute " until (sic) petent Court has determined the rights of the (sic) thereto or the person entitled to possession thereof". Clause (2) of the section provides that "when the Magistrate attaches the subject of dispute; he may, if he thinks fit, appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure".

(3.) The possession of a receiver so appointed Ls the possession of the Magistrate who appoints him, and the Magistrate has possession or custody under a Statutory power or title good against the parties to the dispute until a judicial determination is arrived at by the proper Court in regard to "the rights of the parties" or "the person entitled to possession". An interlocutory order of a Civil Court appointing a receiver does not amount to such a determination, and cannot therefore have the effect of discharging the Magistrate s attachment, or enable the Court to remove the receiver appointed by the Magistrate. The order made by the learned Subordinate Judge in this case assumed, contrary to the fact, that one of the parties to the salt had at the time the right to terminate the Magistrate s attachment or which is the same thing to remove the Magistrate s receiver. The learned Subordinate Judge says that in virtue of the suit instituted before him he has seisin of the land. So he has quoad the parties to the suit. But he has overlooked Clause (5) of Rule 1 of Order XL which says that nothing in the rule shall "authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove". None of the parties to the suit has a present right to interfere with the Magistrate s possession. The whole object of the attachment is to vest the possession or management of the property In the Magistrate safe from any interference of the parties. The mere institution of the suit clothes the Civil Court with no right or power not then possessed. by one or other of the parties before it. It does not give the Court a right to possession contra mundum.