JUDGMENT - B.N. DESHMUKH, J.:---This is an application in revision against the order of the Executive Magistrate, Greater Bombay, dated the 3rd June, 1976. The facts of this case are rather peculiar and the petitioner is being thrown from pillar to post for getting justice. According to the petitioner, he was induced into the disputed flat in a Co-operative Housing Society by respondent No. 3, who is an allottee thereof from the Society. This event occurred in November 1971. The licence fee or the compensation was Rs. 176/- per month. In November 1973 the Bombay Rent Act came to be amended giving protection to the licensees. According to the petitioner, this disturbed respondent No. 3 and he began harassing in one way or the other. In July, 1974 respondent No. 3 filed a Criminal Complaint for assault in the Vikroli Court against the petitioner and his wife. That case was transferred to Dadar Court and numbered as Criminal Case No. 50/S of 1974 of the 13th Court, Dadar. That complaint was ultimately disposed of on August 25, 1975 acquitting the petitioner and his wife of the charge of assault. It appears that while this was going on respondent No. 3 devised another method of trying to get round the legal relationship between him and the petitioner. We will narrate the events in the manner in which the petitioner came to know of them. While in the office on 29th July, 1975 the petitioner learnt from his neighbours that respondent No. 3, accompained by about 8 to 10 persons had gone to the flat when his wife was alone, and was creating troubles. After returning home he received a call from the Nehru Nagar Police Station at about 6.30 p.m. He and his wife went there and they were detained by the Police on the ground that a charge of house-breaking was alleged against them and the arrest was under sections 454, 451 and 114 of the Indian Penal Code. It is there for the first time that the petitioner learnt that respondent No. 3 has obtained an ex parte decree in the Court of Small Causes in Ejection Application No. 138/476-E of 1974. He also learnt that this decree was obtained on 16-6-1975 and was supposed to have been executed in the morning at about 9 a.m. on 29th July, 1975. He also learnt that this decree was obtained on 16-6-1975 and was supposed to have been executed in the morning at about 9 a.m. on 29th July, 1975. All this information was a nightmare to the petitioner and he did not know what to do. The moment he so realised he rushed to the Small Causes Court and made an application for setting aside the ex parte decree. In that application he also applied for an interim injunction restraining respondent No. 3 from executing the ex parte decree or otherwise disturbing the possession of the petitioner. An ex parte injunction was granted and it was served upon respondent No. 3 on 3rd of August 1975. The petitioner felt that he had taken at any rate steps to safeguard his possession but as further events would show, he had not yet come out of woods. In the evening of 5-8-1975 some Police Officer came to his flat and told him that the flat was to be sealed under the orders of the Executive Magistrate. The petitioner then showed a certified copy of the order of the Small Causes Court granting an injunction against respondent No. 3. The Police Officers then returned without taking any further action. However, next day evening they again visited the flat along with respondent No. 3 and told the petitioner that the order of the Executive Magistrate was to be executed. The flat was thus sealed on 6-8-1975 on the orders of the Executive Magistrate. The petitioner then rushed to the Executive Magistrates Court on 7-8-1975 only to realise that proceedings under section 145 Cri.P.C. were pending before him and there was interim order of sealing the flat under sub-section (1) of section 146 Cri.P.C. He, therefore, applied to the Magistrate and showed him the order of Small Causes Court. The learned Executive Magistrate, however, told the petitioner that he could obtain a stay order from the Small Causes Court. When such an order was asked for the Small Causes Court is reported to have said, and rightly so, that it had no jurisdiction over the Executive Magistrate and it cannot grant stay of proceedings pending before the Executive Magistrate. The learned Magistrate seems to have taken the view that some how there has been an execution of the decree of the Court of Small Cause in the morning of 29th July, 1975. The learned Magistrate seems to have taken the view that some how there has been an execution of the decree of the Court of Small Cause in the morning of 29th July, 1975. The matter then rested there and the petitioner did not take any further steps in that behalf. The petitioners application for setting aside the ex parte decree was ultimately heard and allowed by the Court of Small Causes by its order dated 2nd March, 1976. We are told that the bailiff who was alleged to have served the notice was examined and cross examined and the learned Judge was satisfied that the bailiff had not effected service at all and, therefore, the ex parte decree was an invalid decree. On that finding being reached, the ex parte decree was set aside. The petitioner therefore, felt that he had got over the main obstacle in his way and applied to the Executive Magistrate on March 29, 1976, for quashing the proceedings and putting him back into possession after removing the lock. The learned Magistrate, however, heard the petition as a whole, and ultimately held that possession appears to have been given by the bailiff on 29th July, 1975 in the Morning. Respondent thus got possession lawfully and it is this possession which has been unlawfully displaced by the present petitioner by breaking open the lock. It is on this view of the matter, that the learned Executive Magistrate held respondent No. 3 to be in possession within two months before the date of the application to him and directed possession to be handed over to respondent No. 3. This is the order which is under challenge before us. As it happened, this order was initially challenged by filling Revision Application No. 152 of 1976 in the Sessions Court, Greater Bombay. The learned Additional Sessions Judge Shri S.M. Thakkar, who is made a formal respondent here, admitted the appeal but refused to give interim stay. The petitioner, therefore, felt that if possession is handed over to Mr. Gupta, which was at the moment with the Police under the orders of the Magistrate, the situation may be further complicated. He, therefore, rushed to this Court by filing the present application initially only for the purpose of obtaining the stay order by challenging the learned Additional Sessions Judges order not granting stay. Gupta, which was at the moment with the Police under the orders of the Magistrate, the situation may be further complicated. He, therefore, rushed to this Court by filing the present application initially only for the purpose of obtaining the stay order by challenging the learned Additional Sessions Judges order not granting stay. When this matter was heard, at length at the admission, stage, we felt that the attitude of the learned Sessions Judge was utterly unhelpful and there was no point in admitting the revision application if the possession which was already with the police since 6-8-1975 was to be permitted to be parted. We further felt that rather than permit the revision application to be heard in that Court, we would withdraw it from that Court and place it our file and directed the petitioner to make substantial amendments in the petition so as to make it full-fledged petition against the order of the learned Executive Magistrate. This has been done and it is this revision application against the order of the learned Magistrate that we are now hearing. This case is a sad reminder that it is not enough to have a good a case for a party but he must also have some good stars in his horoscope. It is often said that litigation is a gamble and the facts of the present litigation establish that beyond doubt. Here is a plaint in the small Causes Court in which respondent No. 3 obtained an ex parte decree. He has never served the petitioner in that case. That he has now judicially established. And against that order granting ex parte decree, the petitioner moved that Court and got it set aside. The respondent No. 3 has not proceeded any further. We would therefore, be justified in holding that respondent No. 3 was interested in some how throwing out the present petitioner, either according to law or inspite of any law, but managed some how to give his action the colour and appearance of law. The facts as alleged by the petitioner are that he is a licensee of the flat from respondent No. 3 and that licence began in November 1971. Nothing would have happened perhaps if the Maharashtra State Legislature had not amended the Rent Act and bestowed additional benefits upon the licensees of flats in State. The facts as alleged by the petitioner are that he is a licensee of the flat from respondent No. 3 and that licence began in November 1971. Nothing would have happened perhaps if the Maharashtra State Legislature had not amended the Rent Act and bestowed additional benefits upon the licensees of flats in State. It is this fortuitous development in November 1973 that led to the present dispute. Initially a criminal case of assault is tried but there respondent No. 3 failed. The petitioner and his wife are both Honourable acquitted. He, therefore, managed surreptitiously to obtain a decree without the service of summons. Not only that but he pretends to have executed that decree with the help of some bailiff as he could succeed earlier in creating evidence of service of summons. The cock and bull story, which is told to us, is that at 9 a.m. On 29th July, 1975 with the help of a bailiff and on the basis of the possession warrant possession was actually taken of the flat. Respondent No. 3 put his lock on the flat. In fact he put a few articles inside and went to fetch more article. When he came back again to his surprise he found that the lock was broken and the present petitioner with his wife has unlawfully entered the premises and continued to occupy the same. With these allegations he rushed to the police station and on the strength of certain documents from the Small Causes Court he asked the police to take action. When a prima facie written evidence of a Court giving possession is placed before the police, it would be difficult to blame the Police Officer-in-charge of the Police Station, if he acted promptly and registered a case of house-breaking against the petitioner and his wife. He therefore sent for the petitioner and his wife, arrested them and released them on bail. It is at that time that the petitioner knows for the first time of some of kind of decree and the alleged execution of the possession warrant. The physical possession, however, continued with the petitioner at any rate admittedly after breaking open the lock on 29th July, 1975. It is at that time that the petitioner knows for the first time of some of kind of decree and the alleged execution of the possession warrant. The physical possession, however, continued with the petitioner at any rate admittedly after breaking open the lock on 29th July, 1975. When respondent No. 3 found that the remedy of a prosecution under section 454 I.P.C. is not making him available the physical possession of the premises, he tried another method of approaching the Executive Magistrate under section 145 Cri.P.C. In the meanwhile, the petitioner had already taken steps to apply to the Small Causes Court and obtained an interim injunction against respondent No. 3 from taking possession of the flat or disturbing the status quo. That order was substantially an order of prohibiting the execution of the ex parte decree. The ex parte decree, as we have already stated earlier, was in fact set aside on 2nd March 1976. However, in the meanwhile on the allegations of respondent No. 3 the learned Executive Magistrate entertained the application under section 145 Cri.P.C. and also some how came to the conclusion that this is a case of an emergency and attachment of flat must be ordered. He thus ordered attachment of the flat. When the police went there with the order of the Magistrate and were apprised of the development in the Small Causes Court they did not choose to immediately execute the warrant. However, respondent No. 3 seems to have again appeared before the Magistrate and perhaps obtained some further orders to the police to go and seal the flat. On the assumption that the Police officer who went back in the evening of 5-8-1975 must have apprised the Magistrate as to why the warrant was not executed, they must have told him that this was essentially a civil dispute and there is an attempt to obtain possession by any means either fair or foul. They must have told the Magistrate that the Small Causes Court whose decree is supposed to have been executed had granted injunction restraining respondent No. 3 from disturbing the possession of the petitioner. In spite of this, the learned Executive Magistrate chose to draw his own order and direct the police to seal the flat. They must have told the Magistrate that the Small Causes Court whose decree is supposed to have been executed had granted injunction restraining respondent No. 3 from disturbing the possession of the petitioner. In spite of this, the learned Executive Magistrate chose to draw his own order and direct the police to seal the flat. We are surprised that the learned Magistrate should not have thought of issuing a show cause notice to the petitioner for ascertaining the facts as must have been told to him by the Police Officer. If he had chosen to do that he would have known that this was essentially a civil dispute which is being given an ugly turn by the respondent No. 3 and he is using netarious means for somehow evicting the petitioner. However, the order was thus executed on 6-8-1975 and since then the flat in dispute is under the seal of the police. Coming to the merits of the matter, we are satisfied from all the facts which have been brought to the notice of the learned Executive Magistrate that the petitioner was never physically thrown out of the premises. The ex parte decree was fraudulently obtained and from the circumstances of this case, we are satisfied that there was no execution as such, but a mere paper record was prepared. We would direct that the learned Judge of the Court of Small Causes who is hearing this case will find out the bailiff who has made this report regarding the execution and will investigate into the matter and if necessary take departmental action against him. From the circumstances of the case we believe the case of the petitioner that he was continuously in possession and in due course went to his office in the morning of 29th July, 1975. He was undoubtedly unaware of any decree, nor any bailiff or respondent No. 3 ever visited his premises in that morning. It was only a message from the neighbours which made him aware about the visit of respondent No. 3 along with some 8 or 10 persons and about the trouble created at the flat. We are unable to pursuade ourselves to believe that either in the absence of the petitioner, or in the presence of his neighbours any physical possession was even taken or belonging of the petitioners were ever removed from the flat. We are unable to pursuade ourselves to believe that either in the absence of the petitioner, or in the presence of his neighbours any physical possession was even taken or belonging of the petitioners were ever removed from the flat. When he returned in the evening from his office, he merely finds that the Police have sent for him. No physical possession was ever disturbed, and the reports regarding the so called execution are fictitious reports fraudulently obtained with the help of the bailiff of the Small Causes Court. We are thus satisfied from the circumstances and the evidence on the record that respondent No. 1 has been trying his best to create record of physically dispossessing the petitioner from the flat. In fact and in law he has never done so and the petitioner is in possession continuously all along in the same capacity in which he was before 29th July, 1975. If that is so, how could the learned Magistrate ever think of handing over possession to respondent No. 3. In our view the bailiffs report is a more make-belief. Since respondent No. 3 knew that he had obtained a fraudulent decree with service of summons, he cannot be allowed to take advantage of his own fraud. Even if he displaced the petitioner for some time, that possession was unlawful and cannot be considered as prior possession for the further proceedings under section 145 Cri.P.C. On the contrary, petitioners possession is lawful more so, as the fraudulent ex parte decree is already set aside. The learned Magistrate who has passed the final order under section 145 Cri.P.C. Has taken too technical a view and has not cared to go deep into the record and verify the real nature of the bailiffs report. Since the petitioner was all along alleging that he was never dispossessed, it was the primary duty of the Executive Magistrate to find out whether the bailiffs report can be accepted at its face value. There is no discussion thereof. We are thus satisfied that over since the time respondent No. 3 handed over possession of the flat to the petitioner under some contract which is the subject-matter of dispute, the physical possession of the flat has continued all along with the petitioner and he was never dispossessed. There is no discussion thereof. We are thus satisfied that over since the time respondent No. 3 handed over possession of the flat to the petitioner under some contract which is the subject-matter of dispute, the physical possession of the flat has continued all along with the petitioner and he was never dispossessed. Fortunately for him the earlier fraudulent attempt to obtain the ex parte decree has now failed and he is entitled to contest the litigation. If, however, the Small Causes Court passes a decree on merits nobody can help the petitioner because he will then be loosing the flat in due course of law and under the valid orders of Court of law. Until, therefore, that happens his possession has got to be protected. We are thus satisfied that the proceedings under section 145 Cri.P.C. were really unnecessary and should not have been entertained. However, since they are entertained by the learned Magistrate, on the evidence and the circumstances and on the basis of the findings to which we have arrived above, we would allow this application. We would thus set aside the order of the learned Executive Magistrate and instead direct that the sealed premises be handed over to the petitioner forthwith. We further direct that all the articles of the petitioner left in the premises be handed over to him after removing the police seal. Revision application thus succeeds and the rule is made absolute. The learned Counsel for respondent No. 3 prays that the execution of this order be stayed for two weeks, so that respondent No. 3 might file an appeal in the Supreme Court. After considering the merits of the case, we think the stay should be refused. We refuse it accordingly. The Inspector of Police to act on the minutes of this order. -----