L.S. Mehta, J.
1. This is a criminal reference submitted by learned Sessions Judge, Jodhpur, recommending that the order of Sub-Divisional Magistrate, Jodhpur, dated January 27, 1908, for the appointment of a receiver to manage the attached house in Case No. 42 of 1967, under Section 145, Cr. P. C. be quashed.
2. Party No. 1, Sajjan Singh son of Bhairun Singh, it is alleged, made a report at the Police Station, Bilara, with the allegation that Sajjan Singh, son of Jagannath Singh, Party No. 2, forcibly occupied his house, situate in village Chokri Kallan, on October 16, 1967, and that there was everypossibility of breach of the peace. On receipt of the above report, the Station House Officer of the said Police Station proceeded on the spot, on October 27, 1967, conducted inquiry and apprehended that there was imminent danger of breach of the peace. He then submitted a report, on October 28, 1967, to the court of Sub-Divisional Magistrate, Jodhpur, for taking immediate action by way of attaching the house in dispute. That very day the Sub-Divisional Magistrate drew up a preliminary order and attached the premises in question. Thereafter on November 9, 1967, Party No. 1, applied to the court for the appointment of a receiver. On January 27, 1968, learned Sub-Divisional Magistrate, Jodhpur, issued direction appointing Tehsildar, Bilara, as a receiver, to look after and preserve the property.
It may also be stated here that party No. 2 filed a civil suit in the Court of civil Judge, Jodhpur, in respect of this very property and obtained a temporary injunction against party No. 1 on January 25, 1968. A revision application was filed by party No. 2 against the order of Sub-Divisional Magistrate, dated January 27, 1968, in the court of learned Sessions Judge, Jodhpur.
Learned Judge observed in his order of reference that the Magistrate was not competent to appoint a receiver and that a criminal court should respect temporary injunction, issued by the civil court. He mainly relied on Mewa Lal v. Emperor, AIR 1918 Pat 197, Diwan Chand v. Emperor, AIR 1929 Lah 223, Malkappa v. Padmanna, AIR 1959 Mys 122 and Brojendra Kumar Sen Gupta v. Jitendra Chandra Sen, AIR 1960 Assam 111 (SB) and recommended that the order of the Sub-Divisional Magistrate, dated January 27, 1968, be quashed.
3. The order of attachment of the house including the furniture and other articles was made as far back as October 28, 1967. That order was not challenged in any revision petition. That order is the parent order. The order appointing the Tehsildar as a receiver is only a follow-up one, directing him to look after and preserve the property. When the principal order was not assailed, the consequential order could not have been challenged. The attachment having been made, on October 28, 1967, there was no other alternative for the Criminal court but to take into its possession the property in dispute. Thus the subsequent order was merely of administrative nature.
4. In support of the above proposition reference is made to Y. S. R. Prasad, Zamindar of Devarakota v. Ramaswamy, AIR 1948 Mad 234. In that case Govinda Menon, J., as he then was, held that when land in dispute had been attached and the court directed the Tehsildar to sell the cultivated rice by public auction, the Tehsildar only acted as an agent of the Magistrate and the direction given to him was merely an administrative order. As the order passed by the Sub-Divisional Magistrate, was simply an administrative one, no revision lay, and the High Court could not interfere.
Similarly, in Shyama Charan v. State, AIR 1955 All 81, Raghubar Dayal, J. as he then was, observed that a Magistrate's order with respect to the custody of a child would not be absolutely without any jurisdiction or power vested in him. As a Magistrate, he has to make suitable orders for the custody of the child. Such an order would undoubtedly be an order made by him in his executive capacity and, therefore, it would not be subject to the revisional jurisdiction of the High Court. Learned Sessions Judge, Jodhpur, relied upon AIR 1918 Pat 197.
In that case Mullick, J. pointed out that a Magistrate was not competent to appoint a receiver and that the order of attachment which the law empowers him to make has no greater force than any attachment, the effect of which is generally to restrain alienations. This view of Mullick, J. was not fully endorsed in the same judgment by Jwala Prasad, J., who observed that an attachment under Section 145, Cr. P. C., may have the same effect as an attachment under the Code of Civil Procedure.
It may possibly amount to something more than that, that is to say, after attachment the Magistrate may take steps for proper care and custody of the property and prevent the removal of the property by any of the rival claimants or strangers. The view of Mullick, J. has further been disapproved in a subsequent Division Bench authority of the Patna High Court, reported in Nandkishore Prasad Singh v. Radhakishun, AIR 1943 Pat 124, wherein it was held that the observation of Mullick, J., which was a mere obiter, does not seem to be correct.
The purpose of the civil court attachment is quite different from that of an attachment under Section 145 (4), Cr. P. C. Attachment of immovable property under the Code of Civil Procedure is a preliminary step to be taken to make the property available for sale for satisfaction of the decree. The main idea of attaching a property by the civil court is to restrain judgment-debtor from transferring or charging the property in any manner. Such an object is wholly foreign to the scope of proceeding under Section 145, Cr. P. C. The Magistrate acting under Section 145, Cr. P. C., has nothing to do with the title of the property and he may be concerned with maintaining actual possession with a view to prevent breach of the peace. In Gopala Aiyar v. Krishnaswamy Iyer, AIR 1920 Mad 209, Burn, J., with whom Sadasiva Aiyar, J. agreed said :
'A mere restraint on alienation would generally be of no use in preventing a breach of the peace, and this is the objectwith which Section 145, is enacted. In order to keep possession a Magistrate must ordinarily act through some agent appointed by him in this behalf.'
This view of Burn, J. was followed by Bhide, J. in Prem Kuar v. Benarasi Das, AIR 1933 Lah 409. In Maung U San v. Maung Lu Gale, AIR 1938 Rang 88, Mackney, J. sitting alone said:
'The word 'attach' merely means to bring under the control of the Court and the Magistrate is entitled to effect that object in any way which is within his power. Certainly, the appointment of a receiver with the powers of a receiver under the Code of Civil Procedure is not one of those ways because unless that power is expressly given, a Magistrate cannot exercise it.'
In a recent decision of the Andhra Pradesh High Court in Venkata Peddiraju v. Balireddi Appanna, AIR 1966 Andh Pra 80, it was held that an order by the Magistrate during the pendency of the proceedings under Section 145, Cr. P. C., that the lessee of the land in dispute should make deposit of certain amount is an administrative order and cannot be revised by the High Court. In Srinivasa Pillay v. Sathayappa Pillai, (1912) 14 Ind Cas 759 (Mad), it was held as follows:--
'The Receiver appointed under Section 146 has got the power of a Receiver appointed under the Code of Civil Procedure. He is invested by law with powers which he can exercise himself. But the Receiver appointed under this Section 145 may not have such powers. He will only be an agent or servant of the Magistrate acting under his order. It is an administrative order passed for maintenance of property which he has attached. The right to attach carries with it the right to take the necessary steps for its custody and management. It is not a judicial order concerning the petitioners.'
Likewise in Deo Kuer v. Sheo Prasad Singh, AIR 1966 SC 359, it has been pointedly made clear that there is no doubt that property under attachment under Section 145 of the Code of Criminal Procedure is in custodia legis.
5. Learned Sessions Judge relied on AIR 1929 Lah 223 in which Dalip Singh, J. was of the opinion that Section 146 (2), Cr. P. C. cannot be so read as to make its provision apply to attachment under Section 145 (4), and the appointment of the receiver under Section 145 (4) is illegal. This judgment was not followed by the same High Court in its subsequent decision reported in AIR 1933 Lah 409. In Ramiah v. Nachiappa Chettiar, AIR 1951 Mad 764, Somasundaram J. took a definite view that a receiver or officer appointed under Section 145 (4), has no power to lease the land attached pending disposal of the proceedings under Section 145, Cr. P. C. But it is open to him to take security from those who are willing to cultivate the land.
6. From the above authorities it is manifest that when once an order of attachment is passed, the court has to appoint someone to take possession of the property. If no one is appointed to take its possession or to preserve it, the order of attachment made by the court becomes meaningless, and its effect will be neutralised. Thus, the subsequent order is only a follow-up one. The Magistrate would be failing in his duty if he does not take the property in custodia legis by appointing a receiver or some other agent to look after it.
A Magistrate attaching the subject matter in dispute under Section 145 (4), Cr. P. C., is perfectly competent to make a suitable arrangement for its custody.
In the present case the Magistrate appointed the Tehsildar to look after or take care of the property. It cannot be doubted that this was a suitable arrangement. After the termination of the proceedings the Magistrate will no doubt see that the possession is handed over to the successful party, but before the conclusion of the proceeding it was within his right to attach the property and then appoint some one as his agent to look after it with a view to prevent breach of the peace or disturbance in public tranquillity. The receiver would only be an agent of the Magistrate acting under his order. Therefore, such an order would be an administrative one passed for the management of the property which has been attached. The right to attach carries with it the right to take necessary step for its custody and management.
7. Learned Sessions Judge has observed in his judgment that a temporary injunction was issued by the civil court on January 25, 1968, against the party No. 1 and, therefore, the criminal court should not have interfered with the order of the civil court. In this connection, it may be pointed out that the scope of the Criminal Procedure Code is distinct from that of the Civil Procedure Code. Criminal Court is concerned with the maintenance of law and order, which is not the function of the civil court. In the present case, on October 28, 1967, proceedings under Section 145, Cr. P. C., had already been started at the instance of party No. 1. Subsequent to that party No. 2 filed a suit on January 24, 1968.
The Civil Court issued an injunction on January 25, 1968, after the institution of the criminal proceedings and about 3 months after the order of attachment made by the criminal Court. The order, dated January 27, 1968, appointing the Tehsildar as a receiver, as pointed out above, is only a consequential direction of the parent order, passed on October 28, 1967. That order is nothing but a compliance of the previous one. The attachment order once passed cannot be left out as a dead direction. It had to be given effect to by the criminal court. That apart, Civil Court's attachmentonly restrains interference by party No. 1. It does not forbid or restrain the parties from breaking each other's head.
Assuming that a dispute about certain immoveable property is pending before a civil court and one of the parties thereto moves a Magistrate to take proceedings under Section 145, Cr. P. C., about the same immoveable property the Magistrate, in a suitable case, can proceed under Section 145, Cr. P. C. For this proposition reliance is placed on a Full Bench decision of this Court, reported in Tikuda v. The State, ILR (1961) 11 Raj 657 = (AIR 1961 Raj 216) (FB).
In that case it was observed that the jurisdiction of the Magistrate to proceed under Section 145, Cr. P. C., is not ousted simply because a suit about the same immoveable property is pending in a civil or revenue Court. Again, in Chairman, Municipal Board, Bhadra v. The State, ILR (1961) 11 Raj 1180 it was pointed out that there is nothing to prevent the Magistrate from taking action under Section 145, Cr. P. C., even where a civil case is pending between the parties in respect of the same subject-matter.
8. Learned counsel for the opposite parry No. 2, cited AIR 1959 Mys 122 in which it was held that the provisions of Section 145, Cr. P. C., should not be invoked when civil litigation about the identical subject-matter is actually pending. Likewise in Multani v. Shah Abdu Turab Qadari, 1962 (2) Cri LJ 709 (Mys) it was held that interim injunction granted by civil Court should be respected by criminal Court. Like opinion was expressed in Lal Chand v. Smt. Amarauti, 1963 (1) Cri LJ 512 (All). It is given therein that a Magistrate taking action under Section 145, is maintaining rights of the parties as determined by the civil Court.
A Special Bench of the Assam High Court in AIR 1960 Assam 111 held that the mere order of the Magistrate under Section 145, Cr. P. C., that a party might be treated to be deemed to be in possession did not affect in any manner the jurisdiction of the Civil Court to grant an injunction restraining the party from interfering with the possession. Although there are certain contrary decisions as pointed out by learned counsel for party No. 2, yet in the face of our own High Court decisions referred to above, it is crystal clear that in spite of a temporary injunction of a civil Court, there can still be an apprehension of breach of the peace.
In such a case it is the duty of the Magistrate to take preventive action under Section 145, Cr. P. C., and then, if necessary, to proceed under Section 107 of the Code of Criminal Procedure against the parry seeking to disturb lawful possession and commit the breach of the peace. In other words, there is nothing to prevent the Magistrate from taking recourse to Section 145, Cr. P. C., in a suitable case even where a civil suit is pending between the litigants in respect of the same subject-matter. Learned Sessions Judge, therefore, is not correct in holding that when a temporary injunction has been issued by a civil Court, that order ought to have been respected by the criminal Court, notwithstanding immanent danger of breach of the peace.
9. It may also be stated here, inter alia, that there was emergency. It is foreign to the scope of the revision-application for canvassing the question whether or not emergency existed at the time when the attachment order was passed by the Magistrate. When the parent order was issued, the aggrieved party could have filed a revision petition. The impugned order appointing an agent of the court to look after the property is only a consequential direction for giving effect to the attachment order. Under Article 131, Limitation Act, a revision application against the order of attachment could have been made within 90 days, but since that order was not challenged within the prescribed time, it became final. The order of attachment passed on October 28, 1967, did not mean symbolic possession. It meant actual possession.
10. In the result, this reference is devoid of merits and is consequently rejected.