Arjun Singh vs State of Haryana

V.K. Bali, J. (Oral)

Arjun Singh through present petition filed by him under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, takes strong exception to the order dated 12th August, 1992 (Annexure P3) passed by Executive Magistrate, Narnaul. The said order reads as under :

"This petition had been presented today. Respondent No. 1 and Advocates of both parties are present. After hearing Advocates of both parties and after looking into the records of this case, I appoint Field Kanungo, Ateli as Receiver. Parties may be present for further proceedings in Court on 9.9.1992.

12.8.1992.

Sd/ Executive Magistrate

Narnaul."

The brief facts culminating into this petition need necessary mention. One Murli Dhar was the owner of land measuring 40 Kanals 8 Marlas situated in village Khod, Tehsil Narnaul, District Mahendergarh. Murli Dhar had four sons, namely, Amin Lal, Kundan, Lila Ram and Arjun Singh. Ram Bilas is son of Lila Ram. Earlier in point of time, Murli Dhar by a consent decree transferred the entire land referred to above in favour of his grand son Ram Bilas. It appears, he realised his mistake of divesting his three sons who had to succeed to his estate after his death. Therefore, on 9th December, 1987 he further consented to the suit instituted by his son Kundan and his daughter Smt. Giarsi. It appears the other sons as also, of course, Ram Bilas were arrayed as respondents to the said suit. Murli Dhar, as referred to above, consented to a decree whereby the land was to stand, transferred in the name of all his sons and daughter in equal shares. When the aforesaid decree against the interests of Ram Bilas came to be passed, he (Ram Bilas) filed another suit in 1988. Obviously, in the said suit, the decree consented by Murli Dhar in favour of all his sons and daughter was challenged. During the pendency of the suit aforesaid he filed an application for appointment of a Receiver. The Civil Court declined his aforesaid prayer on 20th April, 1992 (Annexure P2). The petitioner herein under a wrong legal advice carried an appeal against the order aforesaid which came to be dismissed on 2.9.1992 being not maintainable. It is in these circumstances that the petitioner has challenged the order of Executive Magistrate reproduced above.

I have heard the learned Counsel appearing for the petitioner and Mr. Vijay Pal Singh, AAG, appearing for the State. The undisputed facts which have been noted above, would show that prayer of Ram Bilas for appointment of Receiver was declined and it is the same very prayer which has been allowed by the Executive Magistrate. It is by now well settled proposition of law that the parties who resort to settle their dispute by a Civil Court and can obtain all kinds of interim orders like injunction and appointment of Receiver cannot have resort to proceeding under Section 145 of the Code of Criminal Procedure. Reference may conveniently be made to the decision of the Supreme Court in Ram Sumer Puri Mahant v. State of U.P., 1985(1) Recent Criminal Reports 278 : AIR 1985 SC 472 ; and Jasbir Kaur and another v. State of Haryana, 1991(1) CLR 499 and Lakhmi Ram v. S.D.M. & Anr., 1989(2) Recent Criminal Reports 571 : 1990(2) CLR 533 . In considered view of this Court, Executive Magistrate in face of the parties having resorted to Civil Court, where Ram Bilas was unsuccessful in obtaining the order of appointment of Receiver, could not either pass the preliminary order or attach the land and appoint the Receiver. That apart, it is rather strange to note that the Executive Magistrate first appointed Receiver on 12th August, 1992 and thereafter attached the land on 18th September, 1992.

Finding merit in this petition, proceedings before the Executive Magistrate under Section 145 of the Code of Civil Procedure as also the order dated 12th August, 1992 are quashed. Petition is allowed accordingly.