KRISHNA GOPE Vs. NITYA NAND PANDEY

JUDGEMENT

(1.) Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No. 2. Learned counsel appearing for the petitioner submits that in the year 2007, a proceeding under Section 144 of the Code of Criminal Procedure was initiated at the instance of opposite party No. 2. That proceeding was dropped on 8.1.2008 holding therein that the dispute which is there appears to be civil in nature. However, a proceeding under Section 144 of the Code of Criminal Procedure was again initiated on 13.10.2008 at the instance of opposite party No. 2. That was dropped on 29.8.2009 as the same was not pressed by the first party-opposite party No. 2. While that matter was pending, an application was filed on 12.11.2008 for initiation of a proceeding under Section 144 of the Code of Criminal Procedure, upon which a case was registered being Misc. Case No. 147 of 2008. In the said case, notice was issued. Meanwhile, by the time notice could have been served, an application was filed on 24.11.2008 wherein prayer was made to attach the land in dispute. On the same day, i.e. 24.11.2008, an order was passed whereby the property was attached and even receiver was appointed. When the petitioner came to know about that order, he preferred revision application, bearing Cr. Rev. No. 63 of 2009. Before the revision was preferred, the petitioner had filed an application on 12.2.2009 before the learned Magistrate for recalling the order under which order of attachment has been passed which was rejected. The aforesaid revision application seems to have been preferred against both the orders. That revision application was dismissed by holding that in view of the provision as contained in Section 146(2), the revision application is not maintainable as the order passed under Section 146 happens to be an interlocutory order. Meanwhile, that order under which the order of attachment had been passed was recalled on 25.11.2011. The opposite party No. 2 preferred revision application before the revisional court. That was allowed holding therein that once the order of attachment is passed which is affirmed by the revisional court, that cannot be recalled.

(2.) Being aggrieved with that order, the petitioner has preferred this application.

(3.) Having heard learned counsel appearing for the parties, it does appear that the learned revisional court is not justified in allowing the revision application on the ground that once the order of attachment was passed and was affirmed by the revisional court, that cannot be allowed to be recalled for the reason that the provision as contained in Section 146 itself does stipulate that whenever situation of emergency would be over, the order of attachment can be annulled/modified. In that situation, the order passed by the revisional court on 14.5.2012 in Cr. Rev. No. 137 of 2011 cannot be held to be justified. Accordingly, that order is hereby set aside.