Naim Khan vs State and Others

M.B. Farooqi, J.—A dispute arose between the applicant, on the one hand, and the opposite party No. 4, on the other, as regards the possession of certain agricultural property situate in village Daramilkana, district Saharanpur. The dispute traveled into the court of City Magistrate Saharanpur and became the subject of proceedings u/s 145 Code of Criminal Procedure. On 25th April, 1975 the learned Magistrate attached the disputed property on the ground of emergency but even so proceeded to try the case on merits and finally passed an order declaring the applicant to be entitled to the possession of the disputed property. Aggrieved by the order, opposite party No. 4 filed a revision. The revision was heard by the 1st Additional District and Sessions Judge, Saharanpur, who by his order dated 30th October, 1975 allowed the same and set aside the order of the Magistrate holding that the proceedings u/s 145 Code of Criminal Procedure would be deemed to have come to an end in view of the attachment of the disputed property u/s 146 Code of Criminal Procedure rendering it incompetent for the Magistrate to continue the proceedings or pass any other order u/s 145 Code of Criminal Procedure. The order became final between the parties. Thereafter the applicant filed a civil suit No. 415 of 1975 against the opposite party No. 4 in the Court of the Munsif, Saharanpur for permanent injunction restraining the opposite party No. 4 from interfering with the possession over the land in dispute. The applicant also filed an application under Order 39 Rule 1 CPC praying for the grant of temporary injunction. Thereupon the learned City Munsif made an order on 6th November, 1975 directing that the parties shall maintain status qua in regard to the property. Subsequently the aforesaid suit was transferred to the court of I Vth Additional Munsif Saharanpur. By his order dated 15--11-1975, the learned IV Additional Munsif, Saharanpur vacated the order dated 6th November 1975 holding that opposite party No. 4 and not the applicant was in possession of the disputed land. Aggrieved by the order, the applicant preferred an appeal in the court of District Judge Saharanpur which was dismissed on 5-8-1976. Meanwhile, on 13th December, 1975, the opposite party No. 4 moved an application before the Additional City Magistrate for an order declaring that the attachment had come to an end on the allegation that the IV Additional Munsif Saharanpur had upheld his possession and refused to grant an order of temporary injunction in favor of the applicant. On this application the learned Magistrate made the following order on 18--12--1975.

The amount may be paid to him provided there is no stay from any other court, and provided he presents two reliable sureties and P.B. for applicant for Rs. 3000/- each who take the responsibility of paying the amount of Rs. 3000/- the court as and when demanded.

The aforesaid amount represented the sale proceeds of the crop of the attached property. This order was passed ex-parte. Subsequently the applicant made an application praying that the order may be recalled. By order dated 22nd December, 1975 the learned City Magistrate refused to recall the order and rejected the application. Feeling aggrieved, the applicant went up in revision. The revision was heard by II Ird Additional District and Sessions Judge, Saharanpur, who by an order dated 27--4--76 rejected the same; By this application u/s 482 Code of Criminal Procedure the applicant has challenged the validity of the orders dated 18--12--1975 and 22nd December, 1975 passed by the Additional City Magistrate and the order dated 27th April, 1976 passed by the Sessions Judge, Saharanpur and prayed that the same may be quashed.

Learned Counsel for the applicant argued that after attachment of the disputed property u/s 146(1) Code of Criminal Procedure the learned Magistrate become focus officio and ceased to have power or jurisdiction to pass any order much less the impugned order directing payment of the amount in question to opposite party No. 4. He further argued that even if it were assumed that the learned Magistrate was competent to pass the impugned order u/s 146(1) still he could not do so in the absence of a final determination of a competent civil court declaring opposite party No. 4 to be entitled to the possession of the disputed land whereas the learned Magistrate has actually passed the order relying on the order dated 15--11--1975 of the 4th Additional Munsif, Saharanpur which represents an interim and not a final determination of such title. On this premises he urged that the orders dated 18--12--1975 and 22--12--1975 passed by the learned Magistrate were illegal and without jurisdiction. The learned Counsel particularly relied on a decision of this Court in Sohan Lal Burman v. State of U.P. 1975 AWC 210.

Section 146 Code of Criminal Procedure provides as under:

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Sub-section (2) enables a Magistrate to take measures in regard to the custody and management of the disputed property pending determination of title as regards possession between the parties by a Civil Court. The disputed property will naturally include rents and profits that may be recovered from such property during the continuance of the attachment. Any order made by the Magistrate under this Sub-section shall, however, be subject to the orders that the Civil Court may make in that behalf.

Turning now to the present case there is no dispute that the amount in question represented the sale proceeds of the crop grown over the disputed land during its attachment. By his order dated 18--12--1975 which he subsequently confirmed by his later order dated 26--12--1975, the learned Magistrate directed payment of amount to opposite party No. 4 on his furnishing security that he will refund the amount as and when required by the court. Properly construed, the order amounts to an order for interim custody and not an order for final disposal of the amount in question. On the interpretation given above the order is squarely covered by Sub-section (2) of Section 146. It is true that in his order dated 20--12--1975 the learned Magistrate has incidently remarked that his order dated 18--12--1975 was just and proper in that it was in consonance with the order dated 15--11--1975 of the 4th Additional Munsif. But it does not mean that the learned Magistrate treated himself bound by the order of the Munsif and made an order accordingly. He relied on the order of the Munsif simply as a circumstance to justify his own order dated 18--12--1975. In this view if the learned Magistrate relied upon the order dated 15--11--1975 of the learned Munsif, that does not alter the nature of his order dated 18--12--1975 which is essentially an order under Sub-section (2) of Section 146. So viewed the order is perfectly legal and within his jurisdiction. The argument to the contrary of the learned Counsel for the applicant must fail.

The view expressed above is not in conflict with the view taken by this Court in the case of Sohan Lal Burman 1975 AWC 210. In that case Section 146(1) fell to be considered by the Court. Dealing with the Sub-section the Court observed:

A perusal of this provision leads plainly to the result that on any of the three contingencies existing, viz

(1) in cases of emergency;

(2) when the Magistrate reaches the decision that one of the parties is in possession; and

(3) when he is unable to satisfy himself as to which of them was in possession;

he may attach the subject of dispute until a competent court has determined the rights of the parties with regard to the person entitled to possession thereof. Thus, as soon as any of the three situations is reached, and an attachment order is made, the proceedings u/s 145 Code of Criminal Procedure save as regards the withdrawal of attachment provided for by the first proviso to Section 146(1), came to an end before the Executive Magistrate.

These observations do not mean that the Magistrate has no jurisdiction to pass any order under Sub-section (2) of Section 146 after he has attached the property in dispute. Accordingly the decision does not help the applicant.

In these circumstances I am of the opinion that there is no merit in this petition. It is dismissed accordingly. The stay order dated 13--5--1976 shall stand vacated.