Anbayyan and 2 others vs Reginammal

Rengasami, J.—This revision is filed against the order of the Executive Magistrate (Assistant Collector, Padamanabhapuram) in M.C. No. l5

of 1992 u/s 146(1) of the Code of Criminal Procedure appointing the Tahsildar of Kalkulam as Receiver of the property. It appears from the

record that the revision Petitioners, who have already won in the civil litigations against the Respondent herein, which culminated in the second

appeal before this Court, gave a petition before the Executive Magistrate (Assistant Collector, Padamanabhapuram alleging harassment by the

Police on behalf of the Respondent herein and to stop the police harassment in enjoying his property. The Executive Magistrate seems to have

treated this petition as one u/s 145 Code of Criminal Procedure and directed both parties to appear before him and passed this order u/s 146

Code of Criminal Procedure, appointing the Tahsildar, Kalkulam as Receiver holding that the Respondent has been forcibly dispossessed by the

Petitioners and they illegally entered into the property on 11.8.91. According to the Executive Magistrate, as he found the likelihood for breach of

peace, which would endanger the safety of the persons, he felt that until the orders are passed by the competent authority, the appointment of a

Receiver was necessary.

The learned Counsel for the revision Petitioners would point out series of flaws in the order of the Executive Magistrate who without complying

with the provisions of the Code and also without even understanding the very nature of the civil suit, which ended in the Second Appeal before this

Court in favour of the Petitioners, has passed the final order which is perverse. The first point raised by him is that for passing the order u/s 146(1)

the primary requisite is that there must have been an order u/s 145(1) and in this case without passing the requisite preliminary order u/s 145(1),

the Executive Magistrate has straight away passed the order u/s 146(1) of the Code. Section 146 of the Code reads that if the Magistrate at any

time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the

parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such

possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties.

Therefore, the orders u/s 146(1) of the Code can be issued only when an order has been passed first u/s 145(1) stating that a dispute was likely to

cause a breach of peace concerning any land or water within his jurisdiction. Further, he also shall make an order in writing stating the grounds of

his being so satisfied and requiring the parties in such dispute to attend his court on a specified date and time and to put in written statements of

their respective claims, as regards the facts of actual possession of the subject of dispute. The learned Counsel for the revision Petitioners would

argue that no such order was passed by the Executive Magistrate. I find only a notice issued by the Executive Magistrate dated 14.1.92 to the

effect that with regard to the dispute over the possession on survey No. 624/12, the enquiry would be conducted on 27.1.92 at 10:00 and both

parties should appear with the records to prove their rights. Except this notice, there is nothing to show that any order was passed by the Executive

Magistrate as required u/s 145(1) Code for the fact that he was satisfied from the information that a dispute likely to cause the breach of peace.

Therefore, as rightly contended by the learned Counsel, there is no order u/s 145(1) of the Code to proceed u/s 146(1) of the Code to attach the

property and for the appointment of a Receiver.

Another glaring mistake committed by the Executive Magistrate is that in spite of he referring to the civil suit between the parties and its

culmination in the High Court in Second Appeal No. 828 of 1982, in which the claim of the Respondent for the title and possession to the suit

property, was negatived, the Executive Magistrate gives a finding that she was in possession of the property till 10.8.91 and was forcibly disposed

on 11.8.91. I am amazed to see such a finding by an Executive Magistrate, who is an I.A.S. Officer, without applying his mind as to the finding of

the High Court, holding that the Respondent was not entitled to title or possession. As her claim for possession itself would indicate that she was

not in possession of the property. However, the Executive Magistrate goes to the extent of holding that she was dispossessed only on 10.8.91 and

he was satisfied from the records placed before him that she was in possession till 10.8.91. It is unfortunate that the Executive Magistrates are not

even able to understand the sanctity of the order of the civil court which alone can decide the right of the parties. In this case, the Respondent

fought upto the High Court claiming title and also possession, as she was not in possession of the property. Having failed in all the Courts, she has

satisfied the Executive Magistrate somehow, that she was in possession till 10.8.91 and was dispossessed only on 11.8.91. This finding of the

Executive Magistrate is nothing but absurdity, as it is carries no weight. The Executive Magistrate has thoroughly missed the point and has

committed a gross error of not only in the point of law, without passing a preliminary order u/s 145(1) of the Act but also giving a finding against

the decision of the civil courts as though the Respondent was in possession till 10.8.91. Therefore, the order of the Executive Magistrate has to be

quashed.

Accordingly, the order of the Executive Magistrate is quashed. The Receiver, viz. the Tahsildar, Kalkulam, who has been appointed as the

Receiver by the Executive Magistrate is discharged and he is directed to handover the key of the building to the revision Petitioners. The revision

petition is allowed.