JUDGMENT : Misra, J. - The undisputed facts are as follows In Title Suit No. 39 of 1959 in the Court of the Munsif, Aska, the Appellant (Plaintiff) and the Respondent (Defendant No. 1) entered into a compromise decree, the essential terms of which may be extracted. The 1st Defendant namely Sri Adikondo Podhano be declared as the rightful owner with full right, title and interest in respect of all the suit lands and enjoy the same for ever subject to condition below. The first Defendant, in consideration of the aforesaid declaration, shall, within two months from today (14-3-1962), convey by registered deed of transfer, at his cost and deliver possession in favour of the Plaintiff his lands Ac. 1-00 out of Ac. 1-90 from the western side in Survey No. 143, Khata No. 127 of Ganeswarapur village in Digapahandi Taluk, District Ganjam and if the 1st Defendant fails to do so within the aforesaid period the Plaintiff shall stand as the absolute owner with fun right, title and interest in respect of item 3 of the plaint schedule and enjoy; the same for ever in her absolute right and shall be at liberty to execute this decree against the 1st Defendant for delivery of possession of the same, viz., Ac. 0-90 of wet lands in Survey No. 142 in Patta No. 1 in Gopalpur village in Digapahandi Taluk in District Ganjam. In may be noted that the aforesaid Survey No. 143 was the subject-matter of a proceeding u/s 145, Code of Criminal Procedure between the Respondent and others to which the Appellant was not a party. This land had been attached in the 145 proceeding which had been dropped on 22-9-1961. After attachment Survey No. 143 was in the possession of a lessee under the control and management of the Criminal Court. The lessee intimated on 21-3-1962 to the Magistrate that he had left possession of the land. On 26-3-1962 the Respondent (Judgment-debtor) executed a registered sale deed in terms of the compromise decree and on the same day issued a registered notice to the Appellant (decree-holder) that he had executed a registered sale deed in her favour and that she might take possession of the land. On 26-3-1962 the Respondent (Judgment-debtor) executed a registered sale deed in terms of the compromise decree and on the same day issued a registered notice to the Appellant (decree-holder) that he had executed a registered sale deed in her favour and that she might take possession of the land. On 31-3-1962 the decree-holder sent back a registered reply stating inter alia that as the land had not been released from attachment by the Criminal Court, she was not in a position to take delivery of possession. Thereafter the Judgment-debtor filed an application on 21-4-1962 before the Criminal Court asking for delivery of possession of the land to the decree-holder on his behalf. On 6-6-1962 the Criminal Court directed delivery of possession of the land by the Revenue Inspector On 20-7-1962 the Revenue Inspector offered delivery of the land to the decree-holder who refused to take delivery as it was after the expiry of two months stipulated in the compromise decree. The decree-holder filed E.P. 53 of 1902 on 2-8-1962 for delivery of possession of 90 decimals of land in Survey No. 142, title to which was declared in her favour in the compromise decree itself on the failure of the first condition. The judgment-debtor filed objection u/s 47, Code of Civil procedure, which was registered as M.J.C. No. 16 of 1963. The learned Munsif upheld the objection of the decree holder u/s 47, CPC and allowed execution. The judgment-debtor filed M.A. No. 29 of 1963 against the order of the learned Munsif, which was allowed. This miscellaneous appeal has been filed against the judgment of the learned lower appellate Court upholding the contention of the judgment debtor. 2. The dispute between the parties is thus narrowed down to the simple question as to whether the judgment-debtor fulfilled the condition laid down in the compromise decree that he would execute a registered sale deed in respect of Survey No. 143 and deliver possession of the same within two months, that is, by 14-5-1962, so as to be absolutely entitled to the 3rd item of the plaint schedule land in Survey No. 142 (which is now the disputed land). Actually there is no dispute that though the judgment-debtor executed a registered sale deed on 26-3-1962 within two months, he failed to give delivery of possession of Survey No. 143 to the decree-holder within the stipulated time. 3. Actually there is no dispute that though the judgment-debtor executed a registered sale deed on 26-3-1962 within two months, he failed to give delivery of possession of Survey No. 143 to the decree-holder within the stipulated time. 3. To get over this difficulty arising out of non-performance of the condition with regard to the delivery of possession within the stipulated period, Mr. Rangarao advanced the contention that as the proceeding u/s 145, Code of Criminal Procedure, had been dropped on 22-9-1961, the attachment in the same proceeding automatically ceased and that the lessee having intimated the Criminal Court on 21-3-1962 that he had given up possession of the land, the decree-holder should have taken possession of it, in compliance with the registered notice issued to her on 26-3-1962. This argument necessitates an examination of the point of law as to whether the Criminal Court ceased to have control over Survey No. 143 with the dropping of the proceeding u/s 145, Code of Criminal Procedure, on 22-9-1961. 4. The Magistrate gets jurisdiction only when he passes a preliminary order u/s 145(1), Code of Criminal Procedure on being satisfied that a dispute likely to cause breach of the peace exists concerning the land. In all cases, where a preliminary order is passed, attachment of land, which is the subject matter of dispute, is not mandatory. Under Sub-section (4), 3rd proviso, the Magistrate may attach the subject-matter of dispute pending his decision if the considers the case is one of emergency. Under Sub-section (5), the Magistrate shall cancel the preliminary order if he is satisfied that no such dispute, as mentioned in Sub-section (1), exists or has existed. On cancellation of his order under Sub-section (1), all further proceedings thereon shall be stayed. The object of attachment in case of emergency under Sub-section (1) is to have the subject-matter of the dispute under the custody and control of the Magistrate. Attachment means taking or apprehending a property by command or writ. Once the attachment is effected, the parties can no longer go upon the land. The control of the party actually in possession ceases on the attachment being effected. The reason behind the rule is clear. It is only in case of emergency, that is, when the apprehension of breach of the peace is imminent, that attachment is effected. Once the attachment is effected, the parties can no longer go upon the land. The control of the party actually in possession ceases on the attachment being effected. The reason behind the rule is clear. It is only in case of emergency, that is, when the apprehension of breach of the peace is imminent, that attachment is effected. The object can only be attained by preventing both the parties from going upon the land. Thus by attachment the Criminal Court gets complete dominion and control over the property in dispute. Once the Magistrate is in (sic) of the property and the parties are precluded from going upon the land, the land is not allowed to lie fallow as the party entitled to possession would be otherwise put to loss. It is, therefore, the duty of the Magistrate to see to the management of the property. It is put to auction and lessees are put in possession of the property. The usufruct or its value is deposited in Court to be appropriated by the party who is ultimately found to be entitled to possession either in the proceeding u/s 145, Code of Criminal Procedure or under a decree of a Civil Court. Thus though with the dropping of the proceeding the Magistrate ceases to have jurisdiction over the Section 145, proceeding and would not decide the question as to which of the parties is entitled to possession, he can go into the ancillary matter of deciding as to from whose possession the property was attached so as to restore it to him. This has been settled by a series of decisions of this Court-See Dasa Mahanty and Another Vs. Gadadhar Samal and Others, ; Mathuri Mallik Vs. Satrughna Giri and Others, ; Sharfuddin Vs. Sirajuddin and Another, . 5. The position can be better appreciated by reference to the concept of attachment and its consequences under the Code of Civil procedure. Under Order XXI, Rule 54(1), where the property is immoveable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging it in any way and all persons from taking any benefit from such transfer or charge. Under Order XXI, Rule 54(1), where the property is immoveable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging it in any way and all persons from taking any benefit from such transfer or charge. Section 64, CPC prescribes that when an attachment has been made, any private transfer, or delivery of the property attached, or of any interest therein, and any payment to judgment-debtor of any debt or dividend or other moneys, contrary to such attachment, shall be void as against all claims enforceable under attachment. Thus it would be seen that by attachment, the Civil Court does not get dominion or possession over the property. The object of the attachment is merely to give notice to the judgment-debtor not to alienate his property and to the public not to accept any alienation from him. That is the fundamental distinction of an attachment under the CPC and the one under the 3rd proviso to Sub-section (4) of Section 145, Code of Criminal Procedure. Order XXI, Rule 55, CPC lays down some of the circumstances in which attachment shall be deemed to be withdrawn. The underlined words would clearly show that specific provision has been made in the Code itself as to when attachment shall be deemed to be withdrawn. Similarly, Order XXI, Rule 57, Code of Civil procedure, (with the Orissa Amendment) prescribes that where any property has been attached in execution of a decree, but by reason of decree-holder's default, the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date, and that upon every order dismissing an execution case in which there is an attachment, the attachment shall cease unless the Court otherwise directs. Thus under the present rule, with the dismissal of the execution case, the attachment shall cease unless the Court otherwise directs. The Code makes a clear provision that with the dismissal of the execution case, the attachment shall cease. There is no similar express provision in Section 145, Code of Criminal Procedure. It would be worthwhile to note that this rule is new and that there was no corresponding provision in the Code of 1882 enabling the Executing Court to treat the attachment as automatically ceasing on the dismissal of the execution application. There is no similar express provision in Section 145, Code of Criminal Procedure. It would be worthwhile to note that this rule is new and that there was no corresponding provision in the Code of 1882 enabling the Executing Court to treat the attachment as automatically ceasing on the dismissal of the execution application. A current of thought, interpreting the provisions in the Code of 1882 and advocating the view that the attachment continues even after the dismissal of an execution application, is to be found in Agha Syed Daud Ali Shah and Others Vs. Pandit Ram Prasad and Others, and AIR 1916 Mad. 1104. It is unnecessary to multiply authorities. It would be sufficient to say that under the old Code, in the absence of an express provision, the majority view holding the field was that attachment did not automatically cease with the dropping of the execution proceedings. Apart from the difference in the matter of control and dominion relating to attachment by Criminal and Civil Courts See Nandkishore Prasad Singh Vs. Radhakishun the aforesaid view would apply with greater force regarding attachment u/s 145(4), 3rd proviso. Mr. Rangarao placed reliance on an observation in Bindhyachal Prasad Varma Vs. Madho Singh and Others to the effect. It is clear to us that no order of attachment can subsist after the learned Magistrate has found in favour of the second party on the question of possession. No objection can be taken to the aforesaid observation as it lays down the elementary proposition that if the Magistrate declares possession in favour of a party u/s 145, Code of Criminal Procedure, the successful party is entitled to possession and that the attachment would no more be in force. AIR 1952 Trip 29, is a cryptic judgment which does not discuss the principle but merely states that with the dropping of the proceedings, the attachment order automatically ceases. 6. Even assuming that the attachment ceases with the dropping of the proceedings, none of the parties under the Section 145 proceedings can go upon the land without an order from the Magistrate in an ancillary proceeding determining as to from whose possession the land was attached. The dominion and control of the Magistrate would continue until such an order is passed. The dominion and control of the Magistrate would continue until such an order is passed. Take for instance an attached property is in possession of a lessee from the Magistrate in due course of management; and that in the midst of the agricultural season, the Section 145 proceeding is dropped. None of the parties can oust the lessee without an order of the Criminal Court. 7. On the aforesaid discussion I am satisfied that the decree-holder could not have taken possession of survey No. 143 on the basis of the registered notice dated 26-3-1962 from the judgment-debtor. Though the proceeding u/s 145, Code of Criminal Procedure, was dropped on 22-9-1961, prior to the passing of the compromise decree, the judgment-debtor took upon himself the obligation of delivering possession. Though the lessee intimated the Criminal Court that he was no longer in possession only a week after the compromise decree, the judgment-debtor was dilatory in his conduct and never took steps to get the property released from the control of the Magistrate which he did after the expiry of the stipulated period. Mr. Rangarao concedes that the decree-holder had no notice of the intimation given by the lessee to the Criminal Court as she was not a party to the proceeding. The bona-fides of the judgment-debtor might not be doubted; but the non-performance of the condition on his part resulted in the accrual of a right which the decree holder obtained in the compromise decree itself. In the circumstances, the decree-holder is entitled to Ac. 0-90 in Survey No. 142 as per the compromise decree. The objection u/s 47, CPC must be overruled and the decree-holder is entitled to delivery of possession of Survey No. 142 in the execution case. 8. In the result, the judgment of the lower appellate Court is set aside and that of the trial Court restored. The appeal is allowed with costs throughout. Final Result : Allowed