Shiv Lal and Others vs Hira Lal

J.S. Bedi, J.—Har Lal, son of Kewal made an application u/s 145 of the Code of Criminal Procedure against Shiv Lal, son of Arjan and others in the Court of the Executive Magistrate first Class. The Magistrate heard the arguments of the parties and also perused the records and felt satisfied that there was an immediate danger of breach of the peace between the parties over the land in dispute. He, therefore, ordered that the land be attached and also appointed a Sarpanch as a receiver of the said property,--vide his order dated the 14th September, 1967. The Respondents, i.e., Shiv Lal and party went up in revision against this interlocutory order to the Court of Session which came up before Shri C.S. Tiwana, Additional Sessions Judge, Hissar, On that day, the order was attacked on two grounds. Firstly, it was contended before him that the Magistrate Having net mentioned that the case was one of emergency had no jurisdiction to attach the land in dispute. Secondly, it was urged before him that the Magistrate acted without jurisdiction when he appointed the receiver of the property. The first ground did not impress the learned Additional Sessions Judge but the second one appealed to him and he, therefore, felt that the Magistrate was given the power only to attach the property u/s 145 of the Code of Criminal Procedure and not to appoint a receiver and that the receiver could only be appointed u/s 146(2) when the proceedings were referred to a civil Court by the Magistrate. He relied on AIR 1929 223 (Lahore) and recommended to this Court that the order of the appointment of the Sarpanch as receiver by the Magistrate should be set aside.

After hearing the arguments I feel that the recommendation cannot be accepted and must be turned down. From the perusal of Section 145, Sub-section (4), proviso 3, which runs as under it is clear that the Magistrate can attach the property in dispute at any time when the proceedings are pending before him u/s 145(4)--

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

It is also clear that the Magistrate can also attach the property over which ''here is dispute u/s 146(2) of the Code of Criminal Procedure but under this provision he can do so only when he, for the reasons given in the section itself, cannot decide the dispute between the parties and refers the matter to the civil Court. In the. case before me the dispute between the parties was still pending before the Magistrate. As stated above, it is crystal clear that he could attach the disputed property. If that is so, I have no doubt in my mind that the Magistrate could appoint a receiver also at that time. The power of attachment naturally carries with it the power of appointment of receiver, otherwise, it will be entirely ineffective. It is not expected that the Magistrate after attaching the property u/s 145 of the Code of Criminal Procedure would himself go and take possession of the land and start functioning as a receiver.

My attention has also been drawn by the opposite party to Prem Kumar and Anr. v. Benarsi Das AIR 1933 Lah. 409, wherein it was said down in unequivocal terms that attachment u/s 145 might be made by taking possession or by appointment of a receiver or by a prohibitory order restraining payment, of rent, delivery of possession, etc. These were, it was pointed out, the recognized modes of attachment and any one or the other method might be adopted as might be considered appropriate for the object in view and the Court was not restricted only to the last method which is provided by Code of Civil Procedure.

My attention was also drawn to Jethmul Bhojraj and Ors. v. Harbans Nurain Singh and Ors. AIR 1955 Pat 92, wherein it was laid down--

The right of the Magistrate to attach property in dispute u/s 145(4), Code of Criminal Procedure includes his right to make suitable arrangement for the management of the attached property. The order of attachment is not an administrative order, and, therefore, the right to take necessary steps for the management of the property attached, also cannot be said to be an administrative order * * * * * * * *.

Then my attention was drawn to Joshua Sankaran v. Varghese Incob AIR 1955 T.C. 190. It was laid down therein as under:

* * * The Magistrate cannot keep quiet if he is satisfied that the dispute about possession is likely to result in a breach of the peace. To prevent anything like that happening he could attach the property and place it in the hands of a Receiver.

The same view is taken in Maung San U. v. Maung Lu Gale AIR 1938 Ran. 88 and Nandkishore Prasad Singh v. Radhakishun AIR 1943 Pat 124. I, therefore, following these rulings, turn down the recommendation made by the Additional Sessions Judge and dismiss this petition.