MD. FAZLUL HAQUE Vs. MD. HOSSAIN ALI SARKER

JUDGEMENT

(1.) The petitioner (opposite party-petitioner) seeks leave to appeal against the judgment and order dated 07-12-2005 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.885 of 1997 reversing the judgment and order dated 09-04-1996 passed by the learned Additional Sessions Judge, Pabna in Criminal Revision No.3 of 1994 affirming the judgment and order dated 03-05-1992 passed by the Magistrate, 1st Class, Cognizing Court No.1 Pabna dropping the proceeding and directing the receiver for making over possession of the land in question to the petitioner and also paying the sale proceeds since the year 1977 till passing the order to the petitioner.

(2.) The opposite-party, Fazlul Haque, being 1st party, filed an application under Section 144 of the Code of Criminal Procedure with a prayer to draw a Criminal Miscellaneous proceeding restraining the 2nd party, the present petitioner for interfering into the peaceful possession of the land in question described in the schedule of the petition till disposal of such proceeding. Accordingly, M. R. Case No. 293 of 1977 was started and the then learned Magistrate, 1st Class, drew a proceeding under Section 145 of the Code of Criminal Procedure and appointed a receiver to look after the property in question where the 2nd party, the present petitioner appeared and filed a written objection, alleging, inter alia, that 2nd party already filed a civil suit No. 146 of 1974 against the 1st party and others, which has duly been disposed of in the year 1979 and Civil Appeal No. 52 of 1992 has also been preferred which is still pending because Civil Revision No. 3586 of 1993 has been preferred by the aggrieved party against an interim order passed by the appellate Court which awaiting for disposal. So, the proceeding drawn under section 145 of the Code of Criminal Procedure and the very appointment of receiver restraining both the parties from entering into disputed land is out and out illegal.

(3.) However ultimately the learned Magistrate, 1st Class has realized this factual aspect and dropped the proceeding on 3.5.1995 asking the receiver to hand over the property in favour of the opposite party along with the sale proceed so far collected by him during the period of 16 years. But the said order passed by the learned Magistrate was challenged in the criminal revision under sections 435/439A of the Code of Criminal Procedure by the 2nd party which was ultimately dismissed on contest who also affirmed the impugned order passed by the learned Magistrate on 3.5.1995 in M.R. Case No. 293 of 1977.