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Bomma Kom Narayan Naik Vs. Bomma Kom Narayan Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCr. Petition No. 887 of 1984
Judge
Reported inILR1985KAR4038
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145, 146(1) and 146(2)
AppellantBomma Kom Narayan Naik
RespondentBomma Kom Narayan Naik
Appellant AdvocateV.G. Sabhahit, Adv.
Respondent AdvocateC.N. Naik, Adv. for S. R. Nayak, Adv. for R-1 and ;K.H.N. Kuranga, Addl. S.P.P. for R-2
Excerpt:
.....sub-section (8) of section 145 of the code, appointing a permanent receiver in respect of the disputed property. the second limb of his argument on this question was that the assumption of the learned sessions judge that the order under challenge before him was in substance an order falling under sub-section(1) of section 146 even though the order purports to have been made under section 145(8) as reflected from the impugned order, is clearly erroneous. secondly, he contended that assuming that the order under challenge is one made under sub-section (1) of section 146 as held by the learned sessions judge, still the order in question is clearly illegal and un-sustainable as the sub-divisional magistrate appointed the receiver in respect of the disputed lands without first attaching..........sub-section (8) of section 145 of the code, appointing a permanent receiver in respect of the disputed property. the second limb of his argument on this question was that the assumption of the learned sessions judge that the order under challenge before him was in substance an order falling under sub-section(1) of section 146 even though the order purports to have been made under section 145(8) as reflected from the impugned order, is clearly erroneous. secondly, he contended that assuming that the order under challenge is one made under sub-section (1) of section 146 as held by the learned sessions judge, still the order in question is clearly illegal and un-sustainable as the sub-divisional magistrate appointed the receiver in respect of the disputed lands without first attaching.....
Judgment:
ORDER

Kudoor, J.

1. The petitioners in this Criminal Petition were the members of the second party and the 1st respondent was the member of the first party in the proceedings No. MAG 11 SR. 211 before the Sub-Divisional Magistrate, Kumta, a proceeding initiated in exercise of the powers conferred upon him under Section 145 of the Code of Criminal Procedure, 1973 (the 'Code').

2. The matter arises in this way :

Petitioner-1 is the second wife of late Narayan Naik and petitioner-2 is her son. Respondent-1 is the first wife of late Narayan Naik but she has chosen to live separately from her husband since prior to 1938-39 She had filed the suit O.S.No. 186/1939 against her husband in the Court of the Sub-Judge, Karwar, Claiming maintenance which ended in a compromise decree Since then she was residing in Bhaskod and her husband was living in Shetgeri and married the first petitioner in about 1942 and since then they were living together. In addition to petitioner-2, they have a daughter by name Nagaveni.

3. After the death of Narayan Naik in about 1977, there appears to be disputes between the petitioners and the 1st respondent regarding the enjoyment of the properties left behind by late Narayan Naik resulting in the initiation of the proceedings under Section 145 of the Code on a report filed by the Sub-Inspector of Police, Ankola dated 14-10-77. The Sub-Divisional Magistrate, Ankola on receipt of the report of the Sub-Inspector, initiated proceedings under Section 145 of the Code and passed a preliminary order as required under Section 145(1) of the Code on 15-11-1977.

4. It is seen from the records that later the said case was transferred to the Court of the Sub-Divisional Magistrate, Kumta and the matter is still pending. It appears, during the pendency of the proceedings before the Sub-Divisional Magistrate, Kumta, the Sub-Divisional Magistrate had taken action under Section 145(8) of the Code to preserve the crops raised on the disputed land from time to time. However, on 15-6-1984, the 1st respondent filed an application for appointment of a permanent receiver in respect of the disputed lands as there used to be serious disputes between the parties about the enjoyment of the properties at the time of conducting agricultural operations. The Sub-Divisional Magistrate, after hearing both parties and also perusing the connected records including the report of the police dated 9-10-1983 and also the application filed by the 1st respondent, passed an order on 6-7-1984 by which he appointed the Tahsildar of Ankola to be the Receiver in respect of the disputed lands and directed him to manage the lands, collect the income and keep the same in deposit, purporting to make the order under Section 145(8) of the Code.

5. The members of the second party carried the matter to the Court of the Sessions Judge, Uttar Kannada, Karwar in Cr. R.P. No. 35/1984. The learned Sessions Judge, as per his judgment dated 29 -9-1984, dismissed the Revision Petition and confirmed the order passed by the Sub-Divisional Magistrate. It is the correctness and legality of this order of the learned Sessions Judge that is under challenge in this Criminal Petition filed by the member of the Second Party.

6. Sri V. G. Sabhahit, Learned Counsel appearing for the petitioners, urged two main contentions. Firstly, be contended that there is no ambiguity in the order passed by the Sub-Divisional Magistrate, that he passed the order in exercise of the powers conferred upon him under Section 145(8) of the Code and if the order in question is viewed from this angle, the order is clearly wrong and erroneous as he could not make an order under Sub-section (8) of Section 145 of the Code, appointing a permanent Receiver in respect of the disputed property. The second limb of his argument on this question was that the assumption of the learned Sessions Judge that the order under challenge before him was in substance an order falling under Sub-section(1) of Section 146 even though the order purports to have been made under Section 145(8) as reflected from the impugned order, is clearly erroneous. Secondly, he contended that assuming that the order under challenge is one made under Sub-section (1) of Section 146 as held by the learned Sessions Judge, still the order in question is clearly illegal and un-sustainable as the Sub-Divisional Magistrate appointed the Receiver in respect of the disputed lands without first attaching the lands as contemplated under Sub-section (1) of Section 146. In other words, his argument was that the Sub-Divisional Magistrate has no jurisdiction to appoint straightaway a Receiver without first attaching the subject of dispute if he is satisfied that action is required to be taken under Section 146.

7. Before adverting to the points urged by Sri Sabhahit, it seems to ms appropriate to refer to the relevant provisions of law applicable to the case.

Sub-section (8) of Section 145 reads ;

'If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit.'

Section 146 reads :

'146. Power to attach subject of dispute and to appoint receiver :-

(1) If the Magistrate at any lime 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 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 a 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 (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 consequential orders as may be just,'

8. Bearing these provisions of law in mind, I shall now proceed to consider the points urged by Sri Sabhahit in the order in which they were presented before me.

9. The operative portion of the order under challenge reads :

10. It is true as contended by Sri Sabhahit that the order passed by the Learned Sub-Divisional Magistrate if road from the point of view of the provision of law quoted by him, it could be said that the Learned Magistrate has made that order in exercise of his powers under Section 145(8) of the Code but the content of the order shows otherwise. The power conferred on a Magistrate to make an order under Sub-section (8) of Section 145 is clear in its terms inasmuch as if the Magistrate is of the opinion that any crop or other produce of the property which is the subject of dispute in a proceeding under Section 145 pending before him is subject to speedy and natural decay, he may make an appropriate order under Sub-section (8) for the proper custody or sale of such property and upon the completion of the enquiry he shall make such order for the disposal of such property or the sale proceeds thereof as he thinks fit. In other words, the power conferred upon the Magistrate under Sub-section (8) is in effect to preserve the crop or other produce of the property which is subject to speedy and natural decay for the benefit of either of the parties who will ultimately succeed before him. If we read the impugned order, there remains little doubt that the purpose and object of appointing the receiver to the disputed lands was not in terms of Sub-section (8) of Section 145 but falls clearly within the ambit of Sub-section (1) of Section 146. In this view, the contention urged by Sri Sabhahit that the Sub-Divisional Magistrate could rot have made the impugn-ed order in exercise of his power under Sub-section (8) of Section 145 cannot hold the field.

11. Now coming to the second limb of his argument that the conclusion reached by the Learned Sessions Judge that the order in question was in substance passed under Section 146(1) though it was purported to have been madeunder Section 145(8) is clearly wrong and erroneous, does not appear to me sound. I have already adverted to this point and held that, though the order under challenge was purported to have been passed under Section 145(8), in substance, the order in question was passed under Sub-section (1) of Section 146 The Learned Sessions Judge has considered this aspect and reached the same conclusion, in my view, rightly by giving proper and sound reasons. While considering the impugned order whether it falls under Section 145(8) as reflected from the order or falls under Sub-section (1) of Section 146, we must look to the substance of the order and not the provision of law under which the order in question was purported to have been made. The substance of the order, as stated earlier, clearly shows that the Sub-Divisional Magistrate has passed the impugned order under Sub-section (l) of Section 146 of the Code.

12. This takes me to the second contention urged by Sri Sabhahit. Section 146 consists of two parts. The first part contained in Sub-section (1) of Section 146 relates to the attachment of the subject of dispute and withdrawal of such attachment by the Magistrate conducting an enquiry under Section 145 of the Code. It provides that if the Magistrate at any time after passing the preliminary order as required 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 be is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject or dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. The duration of the continuance of the attachment effected under Sub-section (1) as stipulated in the last portion of the Sub-section that the Magistrate 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 seems to me appropriately applicable in the case of attachment of the subject of dispute under the second and third grounds and not under the first ground, where the subject of dispute is attached in the case of emergency. If the Magistrate attaches the subject of dispute under the first ground of exigency, the continuance of the attachment of the subject of dispute would depend upon the result of the enquiry he conducts under Section 145, At the end of the completion of the enquiry under Section 145, if the Magistrate were to come to the conclusion that one of the parties was in possession of the property as stipulated under Section 145, naturally the attachment of the subject of dispute effected by his order under the exigency of emergency would come to an end and the subject matter of dispute shall have to be entrusted to the possession of the party whom the Magistrate considers that he was in such possession, as is referred to in Section 145. However, at the conclusion of the enquiry under Section 145, if the Magistrate considers that none of the parties was in possession of the subject of dispute within thecontemplation of Section 145 of the Code or if he was unable to satisfy himself as to which of the parties was then in possession, the Magistrate could attach the subject of dispute and such attachment would last till a competent Court determines the rights of the parties thereto with regard to the person entitled to the possession of the property. Thus, a close analysis of Sub-section (1) of Section 146 in the light of the provisions contained in Section 145, shows that the Magistrate could attach the subject of dispute in the case of emergency during the pendency of the enquiry before him after a preliminary order under sub section (1) of Section 145 was passed and before the enquiry is completed whereas attachment of the property under the second and third grounds could be made at the conclusion of the enquiry under Section 145. However, the fact remains that the power of the Magistrate to attach the subject of dispute under Section 146 is subject to the existence of grounds stipulated in Sub-section (1) and unless such ground exists he has no power to attach the subject of dispute. Necessarily it follows that the Magistrate shall state the ground for attachment of the subject of dispute, in his order.

13. Proviso to Sub-section (1) stipulates that the Magistrate who has attached the subject of dispute under Sub-section (1) may withdraw the attachment at any time it he is satisfied that there is no longer anylike lihood of breach of the peace with regard to the subject of dispute. If the Magistrate has attached the subject of dispute under Sub-section (1) and after such attachment and during the pendency of the enquiry before him, if the Magistrate is satisfied that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute, he may withdraw the attachment.

14. The second part of Section 146 is stipulated under Sub-section (2). It provides for making such arrangements as the Magistrate considers appropriate for looking after the attached property under Sub-section (1). It stipulates that if no receiver in relation to the subject of dispute has been appointed by any Civil Court, the Magistrate may make such arrangements as he considers proper for looking after the attached property or if he thinks fit, appoint a receiver thereof. Once he chooses to appoint a receiver under sub section (2), then such receiver shall have all the powers of a receiver appointed under the Code of Civil Procedure subject to the control of the Magistrate. The proviso to Sub-section (2) lays down that in the event of a receiver being subsequently appointed in relation to the subject of dispute by a Civil Court, the Magistrate 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 and he may also make such other incidental orconsequential order as may be just. A close reading of Sub-section (2) would show that the Magistrate could exercise all or any of the powers enjoined upon him under Sub-section (2) only after he makes an order of attachment of subject of dispute as provided under Sub-section (l) because emphasis is placed in sub section (2) while stipulating the powers of theMagistrate that those powers were given to him only in respect of the subject of dispute which was attached by him under Sub-section (1). Once the property is attached, it does not automatically follow that a receiver should be appointed for looking after the property. The Magistrate is givendiscretion either to appoint a receiver for looking after the property or to make some other arrangements for the same purpose. However, in both the cases, the condition precedent is the attachment of the subject of dispute as contemplated under Sub-section (1) of Section 146. It seems to me that the power of appointment of the receiver enjoined upon the Magistrate in Sub-section (2) may not be on the same lines as the power of a Civil Court to appoint a receiver under Order 40 Rule 1 G.P.C. although the receiver appointed under Sub-section (2) shall have all the powers of a receiver appointed under the C.P.C. The Civil Court has power to appoint a receiver without attachment of the property under any one of the circumstances stipulated in sub-rule (1) of Rule 1 of Order 40 C.P.C. whereas the attachment of the subject of dispute as stipulated in Sub-section (1) of Section 146 is a condition precedent to appoint a receiver under Sub-section (2).

15. From the above discussion, it follows that the order under challenge made by the Magistrate, appointing areceiver io the subject of dispute without first attaching the subject of dispute as required under Sub-section (1) of Section 146 is clearly without jurisdiction. In this view of the matter, the second contention urged by Sri Sabhahit prevails. Consequently, it follows that the order under challenge is liable to be set aside. Accordingly, it is set aside.


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