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1978 DIGILAW 456 (MAD)

Chowdaiah v. Venkataramanappa and others

1978-08-02

M.S.NESARGI

body1978
Order.- This petition is directed against the order dated 2nd March, 1978 passed by the Sub-Divisional Magistrate, Ramanagaram, in Case No. C.Mis. No. 49 of 1977-78 directing that possession of the property concerned, viz., house bearing Khaneshmari No. B/57 of Harohalli village, Kanakapura Taluk, be handed over to Venkataramanappa, son of Ramaiah, viz., respondent-1. 2. The Sub-Divisional Magistrate initiated proceedings under section 145 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the Code) by passing a preliminary order under section 145(1) of the Code. He simultaneously issued an order under section 146 of the Code directing the Tahsildar, Kanakapura Taluk, to attach the house and be in possession thereof. Consequently on 8th January, 1978, the Tahsildar, Kanakapura Taluk, attached the house by sealing it on different doors and took possession of the same in the presence of the petitioner and respondent No. 1. He sent a report to that effect on 20th January, 1978, to the Sub-Divisional Magistrate. In the meanwhile respondent No. 1 filed O.S. No. 11 of 1978 praying for permanent injunction against some persons as defendants. The petitioner was not a defendant. He filed I.A. No. 1 for ad interim injunction order and the same was granted on 17th January, 1978. That order was produced before the Sub-Divisional Magistrate and the Sub-Divisional Magistrate dropped the proceedings under section 145 of the Code in view of the injunction order. Then on 2nd March, 1978 he by himself i.e., without any representation by Venkataramanappa respondent No. 1, passed an order directing the Tahsildar, Kanakapura Taluk, to hand over possession of the house to respondent No. 1. 3. It is evident from the afore-mentioned facts that when the ad interim injunction order was produced before the Sub-Divisional Magistrate, the Sub-Divisional Magistrate dropped the proceedings under section 145 of the Code in exercise of his powers under section 145(5) of the Code, because there was no likelihood of breach of peace in view of the injunction order. Section 146 of the Code provides for attachment of immovable property which is a subject-matter of dispute under section 145 of the Code and also provides for appointment of a receiver in regard to such property. Section 146 of the Code provides for attachment of immovable property which is a subject-matter of dispute under section 145 of the Code and also provides for appointment of a receiver in regard to such property. Proviso to section 146 (1) of the Code lays down that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. In view of this proviso, the Sub-Divisional Magistrate had to, on coming to the conclusion that there was no likelihood of breach of peace and therefore the proceeding under section 145 of the Code was to be dropped, pass an order withdrawing the attachment. 4. Now the question is whether the Sub-Divisional Magistrate had only the power of withdrawing the attachment or also had the power of directing delivery of possession to one of the parties. Sri M. Papanna, learned Advocate appearing on behalf of the petitioner, urged that the Sub-Divisional Magistrate had no power, in law, to direct handing over possession of the house to respondent-1 and in fact to anyone of the parties and that he ought to have retained possession until a decree or order by a competent Court came to be passed. I am unable to agree with this contention of Sri Papanna. The order of delivery of possession is consequential to or incidental to the order of attachment and withdrawal of the same. It has been so held by this Court in the decision in Thammanna Kajappa Waddar v. Basawwa1. The same is the view expressed by a Division Bench of the Allahabad High Court in the decision in Kaniz Bibi v. State of Uttar Pradesh2. 5. Apart from the afore-mentioned reasons, it is clear that the proceeding under section 145 of the Code is an enquiry. Dropping of such an enquiry would be the conclusion of the enquiry. In this view of the matter, section 452 of the Code would come into play. It may be also seen that a Court has inherent powers to pass such orders because it has got to see that justice is meted out to the parties and it is by an order of the Court that attachment of the property and appointment of a receiver came to exist. That is also the view expressed in Kaniz Bibi’s case2. That is also the view expressed in Kaniz Bibi’s case2. The decision in Kaniz Bibi’s case2, has been followed in the decision in Jhabboo v. Laxmi Narayan and others3. The decisions of the various High Courts have been considered by the Division Bench of the Allahabad High Court in Kaniz Bibi’s case2. 6. The ratio laid down by the Division Bench of the Allahabad High Court in Kaniz Bibi’s case2, is as follows: "After dropping proceedings under section 145(5), the Magistrate has no further jurisdiction to take any proceedings under section 145 but he has specific powers under section 517 (present section 452 of the Code) to pass such incidental orders regarding delivery of possession of the property under attachment which are in the nature of winding up proceedings, restoration or status quo ante and such orders as may be necessary for preservation of the property till the rights of the parties could be determined. While passing such orders he may utilise evidence which may be contained either in the memorandum of attachment or in the evidence already recorded and exercise his judicial discretion as to the person to whom the property is to be delivered. He may, if he is satisfied by the evidence already on the record that any particular person was in possession at the time the attachment was made, hand over the property to him. If he is not so satisfied, the obvious thing for him is to pass no orders, Even without taking recourse to the powers conferred on him under section 517 (present section 452 of the Code), the Magistrate, has inherent powers to pass similar orders as regards delivery of property under attachment after cancellation of proceedings under section 145(5). While taking action, as regards disposal of property under attachment, after cancellation of proceeding under section 145(5), the Magistrate can hold an enquiry to find out not the person who was in possession on the date of the preliminary order but from whose possession the property was in fact taken over at the time the attachment was made. This is so because under section 145, the Magistrate could not, after dropping the proceedings, enquire into the fact as to who was in possession on the date of the preliminary order. The provisions of. This is so because under section 145, the Magistrate could not, after dropping the proceedings, enquire into the fact as to who was in possession on the date of the preliminary order. The provisions of. section 517 (present section 452 of the Code) and section 145 must be interpreted harmoniously and section 517 (present section 452 of the Code) must not be taken to confer on the Magistrate a power which he is debarred from exercising under the provisions of section 145". I respectfully agree with the principles of law laid down in the decision in Kaniz Bibi’s case1, as they are based on sound reasons. 7. Apart from the aforementioned principles of law, it is also clear that principles of natural justice require that whenever an order of the type in question is contemplated, the parties should be notified so as to afford them reasonable opportunity to put forth their cases before the Magistrate. In the case on hand, the Magistrate has, on his own, proceeded to pass the impugned order on 2nd March, 1978. Hence, one of the vital principles of natural justice has been violated. 8. It is seen from the mahazar recorded by the police while sending the first information and the mahazar and the report that the Tahsildar of Kanakapura Taluk recorded while implementing the order of attachment, that no person i.e., neither the petitioner nor respondent 1 is named as having been in possession of the house, and the possession of the house having been taken from him. Therefore, it follows-applying the principles afore-mentioned-that it was the duty of the Magistrate to afford an opportunity to both the parties in regard to this aspect, enquire into the cases represented by them and then proceed to pass an order, which as already pointed but, would be consequential to the order passed by him under section 146 of the Code. 9. In view of the foregoing reasons, I allow the revision petition and set aside the order dated 2nd March, 1978 passed by the Sub-Divisional Magistrate, Ramanagaram, in Case No. C. Mis. 9. In view of the foregoing reasons, I allow the revision petition and set aside the order dated 2nd March, 1978 passed by the Sub-Divisional Magistrate, Ramanagaram, in Case No. C. Mis. 49/77-78, and direct the Sub-Divisional Magistrate to hold an enquiry, after notifying the petitioner and respondent-1 in regard to who was in possession when the order of attachment was given effect to and from whom possession was taken by the Tahsildar, Kanakapura Taluk, and then proceed to pass an order of delivery of possession to such person.