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PETITIONER: DHARAMPAL AND ORS.

       Vs.

RESPONDENT: SMT.  RAMSHRI AND ORS.

DATE OF JUDGMENT07/01/1993

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. SAHAI, R.M. (J)

CITATION:  1993 AIR 1361            1993 SCR  (1)   1  1993 SCC  (1) 435        JT 1993 (1)    61  1993 SCALE  (1)12

ACT: Criminal Law: Criminal Procedure Code, 1973: Section 146--Attachment Order--When comes to an end--Whether Magistrate  can withdraw the order when the civil court  was seized  of  the  matter--Determination  of  the  tights   of parties--Whether  to  be final for cessation  of  attachment order and its withdrawal. Sections 397(3) and 482--Second revision application by same party--Whether  could be entertained by High Court when  the first appellate court has already rejected the first revison application--Whether    High   Court   can   exercise    its jurisdiction  when such exercise was specifically barred  by the Code.

HEADNOTE: There  was  a dispute between the appellants and  the  first respondent,  regarding  the possession of a  house.   On  an application  filed  by the respondent under Section  145  of Criminal  Procedure  Code, 1973, before the  Sub  Divisional Magistrate,  claiming  ownership of the suit  property,  the Magistrate  passed a preliminary order under Section 145  of the Code, and thereafter, made an order of attachment  under Section  146  directing that the attachment  would  continue till the competent civil court determined the rights of  the parties.   On  a  revision  riled  by  the  appellants,  the Sessions  Judge  granted  an interim  stay  of  Magistrate’s order.    Subsequently,   the   Revision   application   was dismissed.   Ile Magistrate passed a fresh attachment  order under Section 146.  Once more in revision the Sessions Judge passed an order staying the fresh order of attachment. Thereafter,  the  appellants  riled  a  suit  for  permanent injuction  and also an interim injunction.  The trial  court dismissed  the  application  for  interim  injunction.    On appeal,  the  District Court issued  an  interim  injunction against 1st respondent and her husband.  Subsequently, the 2 Criminal  Revision preferred by the appellant was  dismissed by the Sessions Judge also on the ground that the civil suit was preferred by the appellant.  Once again, the  Magistrate passed  another order attaching the property but this  third

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order  of attachment was stayed by the Sessions Judge for  a period of 15 days. Thereafter,   on  an  application  by  the  appellants   for withdrawal  of  attachment on the ground that there  was  no apprehension of a breach of the peace, the Magistrate  order withdrawal  of  attachment.  The Revision filed by  the  1st respondent  against the Magistrate’s order was dismissed  by the Sessions Judge. On  an  application under Section 482 of the Code  filed  by Respondent  No.1  for  quashing the  order  withdrawing  the attachment and for directing the attachment to continue, the High  Court held that it was not open to the  Magistrate  to withdraw the attachment till the competent court had decided the  matter finally and restored the attachment.  Hence  the appeal. Allowing the appeal, this Court HELD  : 1.1. The determination by a competent court  of  the rights  of  the  parties spoken in  Section  146(1)  of  the Criminal  Procedure Code, 1973, has not necessarily to be  a final   determination.   The  determination  may   be   even tentative  at  the interim stage when  the  competent  court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending  the final decision in the suit.  The moment the competent  court does so, even at the interim stage, the order of  attachment passed by the Magistrate has to come to an end.   Otherwise, there will be inconsistency between the order passed by  the civil  court  and  the order of  attachment  passed  by  the Magistrate.   The proviso to sub-section (1) of Section  146 itself  takes cognizance of such a situation.  When a  civil court  passes an order of injunction of receiver, it is  the civil court which is seized of the matter and any breach  of its order can be punished by it according to law.  Hence, on the  passing of the interlocutory order by the civil  court, there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.  Under Section 146(2) the  Magistrate can withdraw the order of attachment  passed by him even during the pendency of the dispute in the  civil court.  When the civil court appoints a receiver, the  order of attachment passed by the Magistrate, necessarily 3 gives  way  to the order of the civil court  appointing  the receiver.  It is only when the civil court does not  appoint the  receiver that the Magistrate may make arrangements  for looking  after  the  property or  even  appoint  a  receiver himself However, even when such a receiver is appointed  and the civil court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand  over the possession of the subject in dispute  to  the receiver  appointed  by the civil court  and  discharge  the receiver  appointed by him.  He has also to pass such  other incidental or consequential orders as he thinks just.   Such order may include an order of withdrawal of the  attachment, in view of the seizure of the matter by the civil court  and the consequent want of apprehension of breach of the  peace. It  is,  therefore,  not correct to say  that  the  property continues  to  remain under attachment  of  the  Magisterial order till the rights of the parties are decided finally  by the competent court of law. [7G-H, 8A-C, D-F] 1,2.   In  tic present case, the Appellate Civil  Court  has already  passed  an  order of  injunction  against  the  1st respondent and her husband by virtue of which the possession continues  to  be  with  the  appellants.   Therefore,   the Magistrate had not erred in withdrawing the attachment.  The High Court has erred in holding that the order passed by the

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Sub-Divisional Magistrate withdrawing attachment was without jurisdiction. [8G-H, 6E] 2.1. Section  397 (3) bars a second revision application  by the  same party.  It is now well settled that  the  inherent powers under Section 482 of the Code cannot be utilised  for exercising  powers which are expressly barred by  the  Code. [6D] 2.2. In the instant case, admittedly, the 1st respondent had preferred  a  Criminal  Application to  the  Sessions  Court against the order passed by the Magistrate, withdrawing  the attachment.   The  Sessions  Judge had  dismissed  the  said application.   Hence,  the High Court had clearly  erred  in entertaining  the  second revision at the  instance  of  1st respondent. [6C,E] 3.   The  Magistrate had committed an error in  passing  the subsequent  orders of attachment when the  first  attachment was  never  finally vacated and had revived the  moment  the revision  application flied against It was dismissed by  the Sessions Judge.  None of the parties, including the Sessions Judge,  realised this error on the part of  the  Magistrate. The  Sessions Judge had also committed a patent  mistake  in entertaining 4 revision application against the fresh orders of  attachment and  granting interim stays when he had  dismissed  revision application against the order of attachment earlier. [6A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 667  of 1980. From the Judgment and Order dated 31.7.1980 of the Allahabad High Court in Crl.  Misc.  Appln.  No. 5296 of 1979. M.V. Goswami for the Appellants. Vishnu   Mathur,  A.S.  Pundir  and  R.C.  Verma   for   the Respondents. The Judgment of the Court was delivered by SAWANT,  J.  The admitted facts in the present case  are  as follows.   The  suit property consists of house No.  336  of village  Khonda, District Mathura.  The dispute with  regard to  the  possession  of  the  property  arose  between   the appellants  and  the  respondent  Ramshri.   She  filed   an application  under  Section 145 of Criminal  Procedure  Code [Code]  before  the Sub Divisional  Magistrate,  Sadabad  in which  she claimed ownership of the suit property.  On  31st May, 1976, the learned Magistrate passed a preliminary order under Section 145 of the Code and thereafter on 22nd  April, 1977 made an order of attachment under Section 146 directing that the attachment would continue till the competent  civil court  determined the rights of the parties with  regard  to the said property.  Against this order, a Revision being Cr. Revision No. 27/1977 was filed by the appellants before  the Sessions  Judge who by his interim order dated  23rd  April, 1977  stayed  operation of the learned  Magistrate’s  order. However,   before   the   interim  stay   order   could   be communicated, the attachment had already been effected.  The learned Sessions Judge, therefore, again, by another interim dated  26th April, 1977 directed the police to  restore  the possession   the  property  to  the  appellants  from   whom allegedly  the  possession of the property was  taken.   The possession  was  restored to the appellants on  28th  April, 1977.   The said Revision application was dismissed on  18th August,  1977.  Though, on account of the dismissal  of  the Revision,  the order of attachment passed by the  Magistrate

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revived,  the learned Magistrate passed a fresh order  dated 31st January, 1978 under Section 146 attaching the  property in  dispute.  Against the said order, once more  a  revision being Cr.  R.No. 19/1978 was preferred by the appellants  to the 5 Sessions  Judge  who on 2nd February, 1978 passed  an  order staying  the  fresh  order  of  attachment  passed  by   the Magistrate. 2.   Thereafter,  the appellants filed a suit for  permanent injunction  against the 1st Respondent and her husband,  and in  that  claimed an interim injunction against  them.   The trial   court   dismissed  the   application   for   interim injunction.   Against the order of dismissal, the  appellant filed  an  appeal to the District Court, and  the  appellate court by its order dated 18th May, 1978, allowed the  appeal and issued an interim injunction against 1st respondent  and her husband.  Thereafter Cr.  Revision No. 19/1978 preferred by the appellant before the Sessions Judge was dismissed  on 15th  June, 1978 also on the ground that the civil suit  was preferred  by the Appellant.  Again, although the  order  of attachment stood revived and the order of interim injunction by  the Civil Court still continued, the Magistrate on  25th July,  1978  passed another order  attaching  the  property. Against  this  third  order  of  attachment  passed  by  the Magistrate,  a revision was filed by the  Appellants  before the Sessions Judge and the Sessions Judge by his order dated 26th  July,  1978 stayed the order of attachment  issued  on 25th July, 1978, upto 10th August, 1978. On  26th  July,  1978, the appellant  filed  an  application before  the Magistrate for withdrawal of attachment  on  the ground  that  there was no apprehension of a breach  of  the peace.   On  this  application, on 17th  October  1978,  the Magistrate  ordered withdrawal of attachment.  Against  this order,  the 1st Respondent filed revision being  Cr.   R.No. 180/78  before the Sessions Judge who dismissed the same  on 14th May, 1979. Respondent No. 1 thereafter, preferred an application  under Section  482 of the Code before the High Court for  quashing the  order  withdrawing  the attachment  and  directing  the attachment  to  continue.  The High Court  by  the  impugned order  took  the view that it was not open  to  the  learned Magistrate  to  withdraw the attachment till  the  competent Court  had  decided  the matter  finally  and  restored  the attachment. 3.   On these facts, two questions arise in this appeal viz. whether  the High Court could entertain the second  revision application in exercise of its inherent powers under Section 482 of the Code and whether the interpretation placed by the High Court on the provisions of Sections 145 and 146 of  the Code is correct. 6 4.   There  is  no  doubt that the  learned  Magistrate  had committed  an  error  in passing the  subsequent  orders  of attachment  when  the  first attachment  was  never  finally vacated and had revived the moment the revision  application filed  against  it  was dismissed by  the  learned  Sessions Judge.   It appears that none of the parties  including  the Sessions  Judge  realised  this error on  the  part  of  the Magistrate.  The learned Sessions Judge had also committed a patent mistake in entertaining revision application  against the  fresh orders of attachment and granting  interim  stays when he had dismissed revision application against the order of  attachment earlier.  Let that be as it is. The  question that  falls  for our consideration now is whether  the  High

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Court  could have utilised the powers under Section  482  of the  Code and entertained a second revision  application  at the  instance  of the 1st respondent.   Admittedly  the  1st respondent  had preferred a Criminal Application  being  Cr. R.No. 180/78 to the Sessions Court against the order  passed by  the  Magistrate on 17th October,  1978  withdrawing  the attachment.   The  Sessions  Judge had  dismissed  the  said application  on  14th  May, 1979.  Section 397  (3)  bars  a second  revision application by the same party.  It  is  now well  settled that the inherent powers under Section 482  of the Code cannot be utilised for exercising powers which  are expressly  barred  by the Code.  Hence the  High  Court  had clearly  erred  in entertaining the second revision  at  the instance  of 1st respondent.  On this short  ground  itself, the impugned order of the High Court can be set aside. 5.   However,  since  the High Court has also  proceeded  to interpret  the  provisions of Sections 145 and  146  of  the Code,  it has become necessary to set things right  on  that score as well. We are afraid that the High Court has erred in holding  that the  order passed by the Sub-Divisional Magistrate  on  17th October,  1978 [17.9.78 (sic.)] withdrawing attachment,  was without jurisdiction.  The provisions of Section 146 of  the Code  are  clear  in this respect.   The  Section  reads  as follows:               "146.  Power to attach subject of dispute  and               to appoint receiver.  (1) 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               7               possession  of the subject of dispute, he  may               attach   the  subject  of  dispute   until   a               competent  Court has determined the rights  of               the parties thereto with regard to the  person               entitled to the possession thereof:               Provided that such Magistrate may withdraw the               attachment at any time if he is satisfied that               there is no longer any likelihood of breach of               the  peace  with  regard  to  the  subject  of               dispute.               (2)   When the Magistrate attaches the subject               of dispute, he may, if no receiver in relation               to such subject of dispute has been  appointed               by any Civil Court, make such arrangements  as               he  considers  proper for  looking  after  the               property  or  if  he  thinks  fit,  appoint  a               receiver  thereof, who shall have, subject  to               the control of the Magistrate, all the  powers               of  a  receiver appointed under  the  Code  of               Civil Procedure, 1908 (5 of 1908):               Provided that in the event of a receiver being               subsequently  appointed  in  relation  to  the               subject  of  dispute by any Civil  Court,  the               Magistrate               [a] shall order the receiver appointed by  him               to hand over the possession of the subject  of               dispute to the receiver appointed by the Civil               Court  and  shall  thereafter  discharge   the               receiver appointed by him:               [b]   may  make  such  other   incidental   or

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             consequential orders as may be just." It is obvious from sub-section (1) of Section 146, that  the Magistrate  is given power to attach the subject of  dispute "until the competent Court has determined the rights of  the parties  thereto with regard to the person entitled  to  the possession there or.  The determination by a competent Court of  the  rights  of  the parties spoken  of  there  has  not necessarily to be a final determination.  The  determination may  be  even  tentative  at  the  interim  stage  when  the competent  Court  passes an order of interim  injunction  or appoints a receiver in respect of the subject-matter of  the dispute pending the final decision in the suit.  The  moment the competent Court does so, even at the interim stage,  the order of attachment passed by the Magistrate has to come  to an end.  Otherwise, there will be inconsistency 8 between the order passed by the civil court and the order of attachment  passed by the Magistrate.  The proviso  to  sub- section (1) of Section 146 itself takes cognizance of such a situation  when it states that "Magistrate may withdraw  the attachment  at any time if he is satisfied that there is  no longer any likelihood of any breach of peace with regard  to the subject of dispute’.  When a civil Court passes an order of  injunction or receiver, it is the civil Court  which  is seized  of  the matter and any breach of its  order  can  be punished  by it according to law.  Hence on the  passing  of the   interlocutory  order  by  the  civil  Court,  it   can legitimately be said that there is no longer any  likelihood of  the  breach of the peace with regard to the  subject  of dispute. The  fact  that  the Magistrate can withdraw  the  order  of attachment  passed  by him even during the pendency  of  the dispute  in  the civil Court is made further  clear  by  the provisions  of  sub-section (2) of Section  146.   When  the civil  Court  appoints a receiver, the order  of  attachment passed by the Magistrate necessarily gives way to the  order of the Civil Court appointing the receiver.  It is only when the  civil  Court  does not appoint the  receiver  that  the Magistrate  may  make  arrangements for  looking  after  the property  or even appoint a receiver himself  However,  even when  such  a  receiver is appointed  and  the  civil  Court subsequently appoints a receiver of its own, the  Magistrate has to order the receiver appointed by him to hand over  the possession  of  the  subject  in  dispute  to  the  receiver appointed  by  the civil Court and  discharge  the  receiver appointed by him.  He has also to pass such other incidental or  consequential orders as he thinks just.  Such order  may include an order of withdrawal of the attachment in view  of the  seizure  of  the  matter by the  civil  Court  and  the consequent want of apprehension of breach of the peace.   It is, therefore, not correct to say as held by the High  Court that  the property continues to remain under  attachment  of the  Magisterial  order till the rights of the  parties  are decided finally by the competent Court of law.  That appears to  be  the purport of the High Court’s order since  in  the present case the appellate civil Court has already passed an order  of  injunction  against the 1st  Respondent  and  her husband  by virtue of which the possession continues  to  be with the appellants. In this view of the matter, the Magistrate had not erred  in withdrawing the attachment by his order dated 17th  October, 1978. 9 6.   For  both these reasons, the appeal is allowed and  the impugned order of   the  High  Court is set  aside.   It  is

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necessary to add that the suit as filed by   the  Appellants is  only  for a permanent injunction.  The  appellants  must amend the plaint for claiming also the declaration of  their title to the property in question. N.P.V.                                    Apppeal allowed. 10