JUDGMENT T. R. Handa, J.-This petition under section 397 read with section 482 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code, is directed against the order dated 28-9-1979 passed by the Sub-Divisional Magistrate, Theog whereby the learned Magistrate directed dropping of the proceedings initiated in his court under section 145 of the Code as also withdrawal of the attachment order earlier passed by him under section 146 (1) of the Code and further directed that the delivery of possession of the attached property be made over to respondent Shri Daulat Ram. 2. It appears that Shri Daulat Ram respondent No. 1 moved the Court of the Sub-Divisional Magistrate, Theog under section 145 of the Code for initiating proceedings against the present petitioner and his two sons who have been impleaded as pro-forma respondents no. 2 and 3 presumably on the ground that there existed between the parties a dispute concerning certain land and house property which was likely to cause a breach of the peace. In the course of these proceedings the learned Magistrate passed a short order on 9-2-1977 which reads as under: "Case called. Counsel for the parties present. Arguments heard. The proceedings are closed, in view of the attachment of the disputed land and house property. Parties are directed to determine the right of possession from the competent civil court. Announced. File after needful be consigned to R. Room. Sd/-S. D. M. Theog." 3. This order was never challenged by either patty. The fact that his Order was passed and was never challenged on behalf of either party goes to suggest that the Magistrate after being satisfied that a dispute existed between the parties concerning some immovable property and that such dispute was likely to cause a breach of the peace, passed a preliminary order under section 145 (1) of the Code and thereafter he proceeded to hold an enquiry as envisaged under section 145 (4) of the Code. It can further be presumed that as a result of the enquiry conducted by the Magistrate, he failed to satisfy himself as to which of the parties was in possession of the subject of dispute as on the date of passing of the preliminary order and for that reason he acted under section 146 (1) of the Code and proceeded to attach the property forming the subject matter of the dispute until a competent civil Court had determined the rights of the parties with regard to their entitlement to the possession thereof. 4. A perusal of the impugned order passed on 28-9-79 shows that after the order dated 9-2-1979 5hri Daulat Ram respondent moved an application 24-7-1979 before the learned Magistrate praying for vacation of the attachment. It appears that neither party had cared to approach the civil Court as directed by the learned Magistrate vide his order dated 9-2-1979 till the respondent approached the Magistrate with his application dated 24-7-1979 referred to above. In the meantime, however, some mutation in respect of the property forming the subject matter of the dispute appears to have been sanctioned in favour of Shri Daulat Ram respondent and basing has claim on that mutation and further alleging that there was no more any likelihood of the breach of the peace between the parties this respondent approached the learned Magistrate with the prayer that the property after vacation of the attachment order be delivered to him. 5. In reply to this application dated 24-7-1979 moved by the respondent, the present petitioner appears to have taken the stand that there never existed any apprehension of breach of the peace with respect to the disputed property either at the time when the proceedings under section 145 of the Code were initiated or at the time when the respondent moved his application for vacation of the attachment. The petitioner, however, further claimed that the disputed property was attached from his possession and as such be alone was entitled to be restored to the possession thereof on the vacation of the attachment. 6. The learned Magistrate after considering the respective contentions of the parties observed that inasmuch as both the parties had conceded before him that there was no longer likelihood of the breach of the peace, the proceedings under section 145 of the Code were not attracted and the attachment, therefore, need not be continued. 6. The learned Magistrate after considering the respective contentions of the parties observed that inasmuch as both the parties had conceded before him that there was no longer likelihood of the breach of the peace, the proceedings under section 145 of the Code were not attracted and the attachment, therefore, need not be continued. He, therefore, directed that the attachment be vacated but keeping in view the mutation sanctioned in favour of the respondent with respect to the disputed property and without commenting on the claim of the petitioner to the contrary, he ordered that the possession of the attached property be delivered to the respondent. 7. The contention of the learned counsel for the petitioner is that once the Magistrate had passed his order dated 9-2-1979 finally closing the proceedings and directing the parties to get their respective claims with respect to the subject of dispute adjudicated from the competent civil Court, he had become functus officio and was left with no jurisdiction to pass any further order in the proceedings except an order in accordance with the verdict of the civil Court as obtained by the parties in respect of their rights in the attached property. The impugned order, according to the learned counsel, was, therefore, without jurisdiction and needed to be quashed. 8. Strictly speaking it may not be correct to say that after passing his order dated 9-2-1979, the Magistrate had become funetus offjcio in the proceedings in the sense that he had deprived himself of the jurisdiction to pass any order whatsoever in the proceedings until the final verdict of the civil Court adjudicating the respective claims of the parties with respect to the subject of dispute. Such a contention is obviously against the express language of the proviso to section 146 (1) of the Code which in clear terms confers a discretionary jurisdiction on the Magistrate to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace with respect to the dispute concerning the subject of attachment. Vacation of attachment order would of course imply delivery of possession of the attached property in favour of some party. There is unfortunately nothing in the language of the proviso to guide the Magistrate as to whom he should deliver possession of the attached property while ordering vacation of the attachment. Vacation of attachment order would of course imply delivery of possession of the attached property in favour of some party. There is unfortunately nothing in the language of the proviso to guide the Magistrate as to whom he should deliver possession of the attached property while ordering vacation of the attachment. Since the Magistrate has been expressly conferred with the discretionary jurisdiction to withdraw the attachment and such withdrawal necessarily implies delivery of possession of the attached property to some party and no guideline has been provided in the Code itself as to whom such possession is to be delivered, the only logical conclusion is that the Legislature intended to leave it to the discretion of the Magistrate himself to decide as to whom he should put in possession of the attached property at the time of vacating the attachment. The discretion so vested in the Magistrate is of course neither arbitrary nor unguided. It has to be exercised in a judicial manner keeping in view the provisions of section 145 and 146 of the Code and in furtherance of the objectives underlying these provisions. 9. A bare reading of these provisions would suggest that the same were enacted with the sole objective of protecting the public peace and preventing the breach of the peace if and when there was found to exist some dispute relating to immovable property which was likely to cause the breach, of the peace. In order to achieve this object the Magistrate has been vested with the requisite powers under these provisions. The scheme of these provisions shows that before initiating proceedings under section 145, the Magistrate has first to satisfy himself that there exists within his jurisdiction a dispute relating to immovable property which is likely to cause the breach of the peace and when so satisfied he is required to make an order under section 145 (I) of the Code, commonly known as the preliminary order. It is thereafter open to the parties to satisfy the Magistrate in response to the preliminary order that there actually exists no apprehension of the breach of the peace on which the preliminary order would be liable to be cancelled under section 145 (5) and that would put an end to the entire proceedings inasmuch as in the absence of any danger to the peace, the provisions of section 145 cannot be invoked. In case, however, the preliminary order is not cancelled the Magistrate is required next to hold an enquiry under sub-section (4) of section 145 to determine as to which party was in possession of the disputed property as on the date of the preliminary order or should be deemed to be in such possession by virtue of the proviso to sub-section (4) of section 145. If as a result of such inquiry, the Magistrate is able to decide that one of the parties was or should under the proviso to sub-section (4) be treated as being in such possession of the disputed property, he must pass an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when the provisions of the proviso to sub-section (4) are invoked he may restore to possession the party forcibly and wrongfully dispossessed within two months next before the passing of the preliminary order. In this manner the Magistrate settles the matter temporarily and ensures the maintenance of status quo with respect to the possession of the disputed property until the conflicting claims of the parties arc adjudicated by a competent court and thus prevents the apprehended breach of the peace. In some cases, however, as in the instant case the Magistrate may not be able to decide as to which party was in possession of the disputed property on the date of the preliminary order or should ^e deemed to be in such possession by virtue of the proviso to sub-section (4). In that eventuality he has to invoke section 146 and attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Normally the attachment so effected would continue till the parties get their respective claims with respect to such property determined from a competent Court. The proviso to sub-section (I) of section 146, however, lays down that the Magistrate may withdraw the attachment at any time it he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. The proviso to sub-section (I) of section 146, however, lays down that the Magistrate may withdraw the attachment at any time it he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. The main question that arises for consideration is as to in what circumstances the discretion vested in the Magistrate to vacate the attachment is to be exercised and in the event of exercise of such discretion to whom the possession of the property forming the subject of dispute is to be delivered. 10. To sum up the result of the above discussion it may be said that after the Magistrate is satisfied about the existence of a dispute concerning immovable property which is likely to cause the breach of the peace he is required to hold an enquiry as to which party was in actual possession of the disputed property as on the date of the preliminary order or deemed to be in such possession under the proviso to sub-section (4) of section 145. In case he can arrive at a definite finding that a particular party was in possession on the date of the preliminary order he is required to declare the possession of such party and also to pass suitable orders forbidding disturbance of such possession till the party in possession is evicted in due course of law. If the pro viso to sub-section (4) is attracted, the Magistrate may restore the possession of the property to the party which he finds to have been wrongfully and forcibly dispossessed. In case the Magistrate fails to arrive at a finding about the possession of either party, the only course open to him is to attach the property under section 146 (I) of the Code. There is thus no power vested in the Magistrate to order delivery of possession to a party who is not found to be in actual possession on the date of the preliminary order or who cannot be deemed to be in such possession by invoking the proviso to sub-section (4) of section 145. It is in the light of this scheme of the Code that the discretion vested in the Magistrate under the proviso to sub-section (1) of section 146 is to be exercised. It is in the light of this scheme of the Code that the discretion vested in the Magistrate under the proviso to sub-section (1) of section 146 is to be exercised. Since the vacation of the attachment order inheres in it the delivery of possession to one of the parties, the discretion vested in the Magistrate to vacate the attachment order should be exercised only when he is in a position to deliver possession of the property to one of the parties without violence to the provisions of section 145 referred to earlier. The language of section 146 (lj of the Code would also supports this view inasmuch as, according to this provisions, the attachment is ordinarily to continue until a competent Court has determined the rights of the parties with regard to the person entitled to possession of the attached property. Looking from this view the discretion vested in the Magistrate under the proviso to sub-section (1) of section 146 must be taken as very much restricted in its scope and operation. In view of what has been stated above it looks difficult to hold that the Magistrate while vacating the order of attachment under the proviso to subsection (I) of section 146 can order delivery of possession to any party except in accordance with the decision of some competent civil Court declaring the rights of the parties with respect to such possession unless the parties to the proceedings enter into a mutual agreement before the Magistrate with respect to the delivery of possession since the fact that the property had been attached itself implies that the Magistrate had earlier inspite of the inquiry failed to come to any conclusion as to which of the parties was in possession. The object of adding the proviso to sub section (1) of section 14o appears to be to meet an eventuality when the parties to the proceedings when directed to seek adjudication of their rights from a competent civil Court, may prefer to settle the matter amicably out of Court rather than approaching the civil Court. The object of adding the proviso to sub section (1) of section 14o appears to be to meet an eventuality when the parties to the proceedings when directed to seek adjudication of their rights from a competent civil Court, may prefer to settle the matter amicably out of Court rather than approaching the civil Court. But for this proviso to sub-section (I) of section 146, the Magistrate bad no power to vacate or withdraw the attachment once made and the parties were left with no option but to approach the competent Court and obtain its verdict even if in the meanwhile they succeed in settling their dispute with regard to the attached property amicably. This proviso is thus intended to save the parties from the unnecessary botheration of seeking adjudication from the competent Court even after they have arrived at a mutual agreement In this view of the matter, it may he safely concluded that the discretion vested in the Magistrate under the proviso to sub-section (1) of section i46 is intended to operate in a very narrow and limited field and can be exercised only when the parties appear before the Magistrate and place before him an agreed formula enabling the Magistrate to vacate the attachment and deliver possession of the attached property in accordance with such formula. The scope of this discretion cannot be widened any further except at the cost of causing violence to the provisions of section 145 discussed above. In other words, the Magistrate must continue the attachment until the verdict of the competent Court is obtained by the parties unless the parties at an earlier moment place before h>m an agreed formula as referred to above. 11. With these remarks I quash the order of the learned Magistrate directing vacation of the attachment order and delivery of possession of the attached property to Shri Daulat Ram respondent and direct that the attachment shall continue till the parties get their respective rights determined from a competent civil Court or till they decide the matter with respect to possession by mutual agreement. In case the possession of the property has already been delivered by the Receiver to Shri Daulat Ram respondent, the same shall be restored back to the Receiver. -