G.K. Misra, C.J.
1. The short facts are as follows:
Plot No. 2125 in village Gunduraposi was the subject-matter of dispute in a 145 proceeding amongst the petitioners (second-party members), and the opposite parties (first party members). The second party members did not put any claim to this property. Consequently the 145 proceeding was dropped. In that very proceeding, however, Plot No. 309/407 and Plot No. 2525/2432 of village Podhunkhoja and Gunduraposi respectively were attached, though they were not the subject-matter of the dispute. As there was no dispute in regard to these two plots, the learned Magistrate released the property from attachment in favour of the second party members. Against that order the first-party-members filed a revision in this Court. My learned brother R.N. Misra, J. while upholding the order of the Magistrate regarding the dropping of the proceeding in respect of Plot No. 2125, gave a further direction that the Magistrate would make an enquiry into the factum of possession of the other plots at the time of attachment and release the Property in favour of the party who was in possession at the time of attachment.
After the case went back, the learned Magistrate Passed an order on 23.10.1971 lifting the attachment and directing the police to release the property in favour of the person from whose possession it was attached. Against this order the second party members have come up in revision.
2. The only contention raised by Mr. M.N. Das is that after the case went back, the parties should have been given an opportunity for adducing evidence to establish their respective cases of possession, and the magistrate alone was justified in directing delivery of possession of the property to the person who was found to be in possession at the time of attachment, Mr. Mohapatra does not dispute the correctness of the aforesaid contention and this is in conformity with the order passed by my learned brother. R.N. Misra, J.
3. I am. however, unable to accept this contention as being sound in law. At the time of attachment possession of the respective parties was not determined and in law it was also not necessary to be determined. The properties were wrongly attached as they were not the subject-matter of the dispute in the 145 proceeding. The factual position, therefore, is that those two plots were attached even though it was not required to be so done in the 145 proceeding. The moment it came to the notice of the Magistrate that the attachment was illegal it was open to him to reverse the process, and lift the attachment without making any inquiry into the question of possession at the time of attachment. The Magistrate is merely rectifying a wrong committed under his orders. Therefore, the appropriate order would be that those two plots should be released from attachment. It is not necessary to determine the respective possession of the Parties of these lands which were not the subject-matter of the proceedings under Section 145, Cr.P.C. The correctness of this proposition was put to the learned advocates as it runs counter to their arguments and to the direction given by my learned brother, R.N. Misra, J. and they conceded that this is the correct view of the law.
4. On the aforesaid analysis, it is hereby directed that the attachment of Plot No. 309/427 and Plot No. 2525/2422 be lifted.
5. It is suggested at the Bar that lifting of the attachment might result in further dispute between the parties. I am not concerned with such a question at this stage. If there is any apprehension of breach of the peace, the hands of the Magistrate are long enough to deal with the situation.
6. In the result, the Criminal Revision is allowed, and the order of the Magistrate dated 23rd October, 1971, is set aside.