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Reference No. 120 of 1968, decided on 5th March 1969.
, S. 146(1)‑Dispute as to possession of immovable property‑Attachment pending proceeding‑Order passed without discussing and evaluating evidence on possession‑Held, not justified.
Haji Haider Ali Matbar and others v. Haji Muhammad Sekandar and others P LD 1961 Dacca 836 ref .
, S. 146(1), proviso-----Attachment, withdrawal of‑Presence in Court of each and every member of contesting parties connected with original proceedings not necessary‑Magistrate satisfied on representation of any of parties or police report‑Can withdraw attachment.
The proviso to section 146(1), Cr. P. C. does not contem plate that each and every member of the contesting parties connected with the original proceeding should be present before the Court. If the Magistrate is satisfied on representation of any of the parties or from police report, he may withdraw the attachment under that proviso.
, S. 146(1)‑Attach ment; withdrawal of‑Open to Magistrate to pass ancillary orders as to custody of attached property‑Restoration of property to person from whose possession it was taken desirable if determina tion of status quo ante possible.
It is desirable that when an order of attachment is with drawn the attached lands must go either to this or that party. It is, therefore, open to the Magistrate to pass ancillary orders regarding the custody of the attached properties and if it is possible to determine the status quo ante, to restore the Proper ties to the party from whose possession it was taken. But such an order must, in reality, be ancillary, i.e. in the nature of a winding up order. He must of course exercise his judicial discretion in deciding to whom the possession is to be given, The Magistrate has thus jurisdiction to place the parties so far as possible in the position they occupied in relation to the lands or the crops before the initial under subsection (1) of section 145, Cr.P.C. was passed.
A I R 1954 Hyd, 892 = A I R 1955 N U C (Hyd.) 5925 ref.
A. T. M. Kamrul Islam for the First‑Party.
Ahmadur Rahman Khan for the Opposite‑Party.
Dates of hearing : 3rd and 5th March 1969.
This is a reference under section 438 of the Code of Criminal Procedure made by the learned Sessions Judge, Faridpur recom mending to set aside an order dated 13‑2‑68 passed by Mr. A. Rahim, Magistrate, 1st Class, Madaripur withdrawing an order of attachment under section 146 (1), Cr. P. C.
The learned Sessions Judge made the Reference on the grounds firstly, that the original order of attachment dated 17‑6‑63 having been passed by the Magistrate Mr, Muhammad Ali as a Sub‑Divisional Magistrate of Madaripur, the present Magis trate Mr. A. Rahim not being his successor‑in‑office Within the meaning of section 559, Cr. P. C. had no jurisdiction to withdraw the said order of attachment and secondly, the first party No. 1 Abdul Gani having not joined in the compromise petition, the Magistrate concerned had no reason to satisfy himself that there was no longer any apprehension of breach of the peace so as to attract the operation of the proviso to section 146 (1), Cr. P. C. and as such the impugned order of withdrawal of attachment, in the absence of the said Abdul Gani, was not at all justified.
So far as the first point is concerned, I think, it would suffice to say that Mr. Muhammad Ali, was never the Sub‑Divisional Magistrate of Madaripur on 17‑6‑63. He passed the original order of attachment as an ordinary Magistrate 1st Class and not as a Sub‑Divisional Magistrate. A glance to the order‑sheet of the Magistrate's record will clarify the position. The learned Sessions Judge seems to have proceeded absolutely on a misconception. The order‑sheet will show that the original order dated 17‑6‑63 was passed by Mr. Muhammad Ali as a Magistrate, 1st Class. The present Magistrate Mr. A. Rahim is thus his successor‑in‑office and he is competent to withdraw the order of attachment passed by his predecessor. The learned Judge has unnecessarily laboured on the point which has no substance at all.
Coming to the second point raised in the letter of reference let me at the out set point out that the original order of attachment dated 17‑6‑63 passed by Mr. Muhammad Ali, Magistrate, 1st Class, Madaripur under section 146(1), Cr. P. C. was not a happy one. During the enquiry under section 145, Cr. P. C., a large number of witnesses were examined by the contesting parties to prove their possession but the learned Magistrate did not discuss them at all in his order and without making any attempts to evaluate the evidence as to possession although there was sufficient evidence on record, he reached to the com‑fusion that none of the parties was able to satisfy himself as to which of them was in possession of the subject of dispute and thus attached the properties under section 146 (1), Cr. P. C. by a short order of 7/8 lines, The order of attachment without discussing the evidence and making any attempts to l the evidence as to possession was not at all justified. A In this connection the case reported in P L D 1961 Dacca 8361 may be referred to.
The impugned order dated 13‑2‑68 was passed by the Magis trate Mr. A. Rahim under the proviso to section 146 (1), Cr. P. C. Section 146 (1) and the proviso runs as follows :
"If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has deter mined the rights of the parties thereto, or the person entitled to possession thereof:
Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.",
It is apparent from the proviso that the District Magistrate or the Magistrate who has attached the subject of dispute (or his successor‑in‑office) may withdraw the attachment at any time if he is satisfied that there is no likelihood of any apprehension of breach of the peace in regard to the attached properties. A Magistrate is therefore competent to withdraw the attachment if he is satisfied that the apprehension of breach of the peace over the disputed lands has already subsided and there is no more any likelihood of breach of the peace in regard thereto. The Magistrate can take action under the said proviso on his satisfaction and he can be satisfied from any source.
In the instant case a joint petition was filed before the learned Magistrate by some of the members of the first‑party and most of the members of the second‑party with a specific assertion that they compromised their dispute and as a result there was no likelihood of any breach of the peace between them in respect of the alleged properties. In the said petition it was also stated that the parties had partitioned the properties amicably and decided among themselves which part of the lands would go to which member of the parties. In their joint petition they also authorised some one to withdraw the money from the treasury or the Bank as deposited by the receiver appointed by the Court. Although Abdul Gani did not joint in the compromise petition but most of the other members of his party participated in the said compromise. The learned Magistrate in the circumstances, withdrew the attachment order on satisfaction that there was no apprehension of breach of the peace.
In the revisional application filed before the learned Sessions Judge the first party Abdul Gani did not assert that there was still any likelihood of breach of the peace in respect of the attached lands. The order of the Magistrate cannot, therefore, be called unjustified.
The proviso to section 146 (l), Cr. P. C. as quoted above does not contemplate that each and every member of the con testing parties connected with the original proceeding should B, be present before the Court. If the Magistrate is satisfied on representation of any of the parties or from police report, 1 think, he may withdraw the attachment under that proviso. This is not a civil suit where all the parties must join to effect the compromise. Hence the grievance of Abdul Gani that he was not a party to the compromise petition nor was present before the Court and as such the order was bad, does not seem to be of any force. The order of withdrawal of attachment passed by the Magistrate on satisfaction that there was no likelihood of apprehension of breach of the peace cannot be interfered with merely on that score.
The case has a chequered carrier. The lands in question were attached sometime in 1957 and since then the same had been in charge of a receiver. Disputed properties consisted of 70 kanis of char lands. The matter came before this Court on several occasions previously. During this long 11/ 12 years neither of the parties took courage to go to the civil Court. To keep agricultural lands under a attachment for long 11/12 years is shocking. The parties in the long run have come to some sort of settlement and the learned Magistrate considering all aspects of the case has allowed the compromise petition and withdrawn the order of attachment on satisfaction that the apprehension of breach of the peace has subsided. In the facts and backgrounds of the case. I do not find any reason to interfere with the order or the amicable arrangement made by the parties.
The proviso to section 146 (1), Cr. P. C. gives no direction as to whom the Magistrate is to hand over the properties if he is satisfied that there is no likelihood of breach of the peace. The proviso does not stipulate to whom the properties would go after the withdrawal of the attachment order. The section seems to be silent on the point. But it is desirable that when an order of attachment is withdrawn the attached lands must go either to this or that party. It is, therefore, open to the Magistrate to pass ancillary orders regarding the custody of the attached properties and if it is possible to determine the status quo ante, to restore the properties to the party from whose possession it was taken. But such an order must, in reality, be ancillary, i.e. in the nature of a winding up order. He must of course exercise his judicial discretion in deciding to whom the possession is to be given. The Magistrate has thus jurisdiction to place the parties so far as possible in the position they occupied in relation to the lands or the crops before the initial order under subsection (1) of section 145, Cr. P. C. was passed. He has also power to hand over the properties to some one with the consent of the parties concerned or on the basis of an agreement entered into by the parties. This view receives support from the cases reported in A I R 1944 All. 210, A I R 1942 Sind 117 and A I R 1954 Hyd. 892 Notes in A I R 1955 N U C (Hyd.) 5925.
In the present case, as I have already indicated earlier, the parties have made amicable settlement among themselves in respect of the disputed lands and in the said arrangement, the claim of first party Abdul Gani has also been mentioned. In the fitness of things, I think, the arrangements made by the parties as set out in the compromise petition should be accepted and they should be allowed to possess the lands in terms of the compromise petition, pending any decision by a competent civil Court.
For the reasons stated above, I am unable to accept the point raised in the letter of Reference. In the circumstances of the case, it would be undesirable to revive this long‑standing dispute and remand the case back to the Magistrate again on any technical ground. Litigation must come to an end.
The Reference is accordingly rejected.
This order will not, however, debar the parties to take recourse to fresh proceeding under section 145, Cr. P. C. if the circumstances so demand.
S.A.H. Reference rejected.
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