Sohrab Khan, Panch, Gram Panchayat Oatha vs Abdul Rahim and ors.

A.S. Nehra, J.

SubDivisional Magistrate, Ferozepur Jhirka, after perusing the report of Naib Tehsildar, Punhana date 3121990, came to the conclusion that there is dispute between the parties about the possession of the land in dispute and that there is apprehension of breach of peace. Notices were given to the parties to file their written statements, affidavit etc. by 19121990.

On 7121990 Naib Tehsildar, was directed to attach the land in dispute and keep its possession with him till the decision of the case.

Aggrieved by the order passed by the SubDivisional Magistrate, Abdul Rahim etc. filed a revision petition which was allowed 681992 by Sessions Judge Gurgaon. JUDGMENT of attachment and appointment of receiver was set aside.

Abdul Rahim had purchased land in dispute from Ibrahim who had acquired occupancy rights of the land in dispute. Litigation about the land in dispute is pending in this Court in CWP No. 8896 of 1987. Status quo has been ordered to be maintained in the writ petition. Sohrab son of Yakub who is respondent in CWP moved the local police and on his complaint proceedings under Section 145 of the Criminal Procedure Code were started.

It was held by the learned Sessions Judge that as the Civil Writ petition between the parties in pending in this Court and status quo has been granted, therefore, proceedings under Section 145 of the Code of Criminal Procedure cannot be allowed to proceed and the same has to be dropped.

Mr. C.B. Goel has vehemently argued that the order of attachment of immovable property was an interlocutory order within the meaning of Section 397(2) of the Code of Criminal Procedure and that revision petition against such order was completely barred. Reliance in this respect was placed on a Division Bench judgment of this Court reported as Kartar Singh and Others v. Smt. Pritam Kaur and another, 1985(1) CLR 338 wherein it was observed as under :

"The attachment of the property and the appointment of a Receiver therefore, does not in any way determine the title of the partitions thereto. Consequently, the ownership of the property under attachment is not even put remotely in issue. It seems to be elementary that in fact in the whole gamut of proceedings under section 145 and 146 of the Code, no question of title of the property in dispute arises between the parties. At the highest, it affects temporarily the right to possession and that too by not transferring it from one party to another, but merely taking it into custody legis, which again, as notices, may be withdrawn at any time and thus reverting possession to status quo ante. The factors of title and ownership being altogether out of that arena of dispute before the Executive Magistrate, and, the possession and attachment also being of a temporary and transient in nature, are other attributes militating wholly against the concept of such an order being labelled as either final or quassi final in nature.''

It was also observed that an order of attachment of immovable property is interlocutory in nature within the meaning of Section 397(2) of the Criminal Procedure Code and, consequently, no revision against the same is maintainable.

On behalf of the respondents, reliance has rightly been placed on the authoritative pronouncement of their Lordships of the Supreme Court in case Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) Recent, CR 43 (SC) wherein it was held a under :

"When a civil litigation is pending for the property wherein the question of possessions is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondents 25 was not in a position of challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil Court and parties are in a possession to approach on the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties, nor, should public time be allowed to be wasted over meaningless litigation."

The authority in Ram Sumer Puri Mahant''s case (supra) is fully applicable to the facts of case in hand, in as much as proceedings under section 145 of the Code of the Criminal Procedure were initialled, while civil writ petition between the parties, regarding the same subjected matter, was already pending. It is pertinent to note that this Court had already directed maintenance of status quo concerning possession of the land in dispute. In these circumstances, it is hardly seemed reasonable that the Criminal court in preliminary proceedings could be permitted to decide the same question or to pass orders concerning attachment of the property and appointment of receiver in respect Act, thereof, when, such functions can be more conveniently, and, effectively performed by the Civil Court.

It is true that Section 397(2) of the Code of Criminal Procedure would operate as a bar to the exercise of revisional jurisdiction by the Sessions Judge in respect of interlocutory orders concerning attachment of land in dispute and appointment of Receiver. However, in the absence of any revisional power to set aside or to quash the interlocutory orders passed by the SubDivisional Magistrate during the pendency of the Civil Writ Petition there would be nolegal bar for this Court to exercise its inherent jurisdiction under Section 482 of the Code, so, as to rectify the defect in to order of the SubDivisional Magistrate by modifying the same in conformity with the principle of law enunciated in Ram Sumer Puri Mahant''s case (supra) and in the interest of justice, to stop the abuse of the process of the Court. I am fortified in my view by the authority of their Lordships of the Supreme Court in case reported as Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) Recent Cr 73.

For the foregoing reasons the impugned order passed by the Sessions Judge cannot be said to be illegal or unjust. Rather, the orders of attachment and appointment of Receiver passed by the SubDivisional Magistrate to has rightly been set aside and quashed.

No interference is impugned order passed by the Sessions Judge is called for. This petition is, accordingly, dismissed.