N. Y. HANUMANTHAPPA, J. ( 1 ) ORDER under challenge is the one passed by the Tahsildar and Taluk Executive Magistrate, bangalore South Taluk, Bangalore under Section 145, Cr. P. C as extracted hereunder:-"i have perused the FIR and sworn statement of PSI Thilaknagar and is satisfied that there is a prima facie to proceed under Section 145, cr. P. C. and further direct the respondents to show cause as to why a receiver shall not be appointed until the disposal of the case. However, the respondents are hereby directed to appear before this court on 30-4-1991 at 11. 00 a. m. with all the relevant documents". Sd/- tahsildar and Exe. Magistrate ( 2 ) A perusal of the above order makes it clear that it not only a composite order but the Taluk executive Magistrate has thoroughly confused himself about the ingredients to be followed under Section 145 (1) Cr. P. C. and then, if necessary, to appoint a Receiver as required under section 146 (2) of the Cr. P. C. ( 3 ) SECTION 145 (1), Cr. P. C. speaks of the following requirements to be complied by the Taluk executive Magistrate:- (l)Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, the Executive magistrate should satisfy himself:- (2) Such a dispute shall exist within his jurisdiction. (3) On satisfying about the existence of dispute and likelihood of breach of peace, the executive Magistrate shall make an order in writing. (4) Such an order shall contain the grounds which necessitated him to arrive at a conclusion that he is satisfied about the existence of breach of peace. (5) On such satisfaction, he shall direct the parties concerned to attend his Court in person or by a pleader on the time and date specified. (6) The said parties may file the written statement about their respective claims as to actual \possession of the subject in dispute. ( 4 ) SECTION 146 (1), Cr. (5) On such satisfaction, he shall direct the parties concerned to attend his Court in person or by a pleader on the time and date specified. (6) The said parties may file the written statement about their respective claims as to actual \possession of the subject in dispute. ( 4 ) SECTION 146 (1), Cr. P. C. speaks that in case of urgency in respect of the property in dispute and it is difficult for the Executive Magistrate to arrive at a conclusion as to who was in actual possession of the said property on the date of dispute may pass an order to attach the property. If he feels that if he is satisfied that the breach of peace is not existing, he may cancel the order or attachment. After attachment, in the absence of appointment of any Receiver by Civil Court to safeguard the property, he may appoint a receiver for looking after the property. ( 5 ) IN the instant case, the Executive magistrate without taking into consideration the requirements of Sections 145 (1) and 146 (1) and (2) of Cr. P. C. , has passed an order as extracted above. Hence, it can be said the said order is the resultant of non-application of mind by the Executive magistrate. It is also made clear that order under Section 145, Cr. P. C. is different from an order under Section 146, Cr. P. C. This position has been made clear in the case of Kottarathil mavunni and Another v State of Kerala and another, 1982 (1) Crl. Law Journal p. 469. "paragraph 5:- Janaki Amma, J. in Lilly franklin v Wislon, 1977 Ker. LT 871 stated in paragraph 9 as follows:- 9. The learned Additional Sessions Judge has held that in the instant case, the order of attachment does not conform to the requirements \of Section 146 (1) of the Criminal Procedure code. The conclusion seems to be well-founded. The order of the Magistrate extracted above shows that it is a composite order initiating proceedings under Section 145 (1) and at the same time attaching the subject of dispute on the ground that there is an emergency. In other words, the initiation of proceedings under Section 145 (1) and the attachment of property are seen effected by the same order. This is not warranted by the provisions of Section 146 (1 ). In other words, the initiation of proceedings under Section 145 (1) and the attachment of property are seen effected by the same order. This is not warranted by the provisions of Section 146 (1 ). Section 146 (1) begins with the words: if the Magistrate at any time after making the order in sub-section (1) of Section 145". The expression "after making the order" makes it clear that proceedings under Section 145 (1) should precede the order attaching the property. Section 146 (1) does not complete a simultaneous exercise of jurisdiction under Section 145 (1) and Section 146 (1 ). The order under Section 145 (1) becomes complete only when the Magistrate puts his signature therein. It is only thereafter that he is expected to consider whether it is a case of emergency requiring attachment of property. Since the order attaching of property in the instant case did not satisfy the above requirements, it was rightly set aside by the Additional sessions Judge. Now that the preliminary order under Section 145 (1) has been confirmed by the Additional Sessions Judge, it is open to the Magistrate to consider whether a case of emergency exists and whether the property should be attached and if he is so satisfied it is up to him to issue fresh order of attachment followed by appointment of receiver". "in paragraph 7 of the Judgment the learned Judge held that once an order is passed under Section 146 (1), Cr. P. C. the magistrate is not expected to proceed with the enquiry under Section 145 or to decide whether any and which of the parties was in possession of the subject of dispute on the date of the preliminary order. According to the learned Judge, the order of attachment puts an end to the proceedings so far as it relates to the enquiry by the Magistrate as to who was in possession of the property and in that view an order of attachment is a final order, against which a revision would lie to this Court. The correctness of this decision was questioned before a Division Bench of this Court and this Court in Bapputty v Kayyu, 1979 Ker. LT 143, following the decision of the Supreme Court in Chandu Naik's case, 1978 SCC (Cri.) 100 : 1978 Cri. LJ 356 held that the view expressed by Janaki Amma, J. in lilly Franklin's case, 1977 Ker. The correctness of this decision was questioned before a Division Bench of this Court and this Court in Bapputty v Kayyu, 1979 Ker. LT 143, following the decision of the Supreme Court in Chandu Naik's case, 1978 SCC (Cri.) 100 : 1978 Cri. LJ 356 held that the view expressed by Janaki Amma, J. in lilly Franklin's case, 1977 Ker. LT 871 that the Magistrate ceases to have jurisdiction to proceed with the enquiry once an order is passed under sub-section (1) of Section 146 is no longer good law, and the Magistrate has jurisdiction to proceed with the enquiry and pass appropriate orders under Section 145 of the Criminal Procedure Code. In paragraph 4 of the decision of the Supreme Court reported in Mathuralal v Bhanwarlal, AIR 1980 SC 242 : 1990 Cri. LJ 1 it is stated this:- "4. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be "at any time after making the order under sub-section (1) of Section 145. " While the other two situations have, necessarily to be at the final stage of the proceedings initiated by the preliminary order". From this, it is clear that the Magistrate gets jurisdiction to pass an order of attachment under under sub-section (1) Section 146 only after a preliminary order under sub-section (1) \of Section 145 is passed. The view expressed by janaki Amma, J. in 1877 Ker. LT 871 that a composite order under sub-section (1) of Section 145 and under sub-section (1) of Section 146 is beyond the jurisdiction of the magistrate is not overruled by the Division bench of this Court in 1979 Ker. LT 143. What was overruled was only that part of the dictum laid down in the decision that by effecting an attachment under sub-section (1) of Section 146 the Magistrate ceases to have jurisdiction to proceed with the enquiry and for that reason the order itself is rendered a final order. LT 143. What was overruled was only that part of the dictum laid down in the decision that by effecting an attachment under sub-section (1) of Section 146 the Magistrate ceases to have jurisdiction to proceed with the enquiry and for that reason the order itself is rendered a final order. From the wordings of Section 146 (1) as well as from the decision of the supreme Court extracted above, it is clear that a composite order under sub-section (1) of Sectionl45 and under sub-section (1) of section 146 cannot be passed as an order of attachment under sub-section (1) can be passed only after the preliminary order under sub-section (1) of Section 145 had already been passed by the Magistrate. The impugned order of the Magistrate, dated 4-4-1981 is valid as a preliminary order under sub-section (1) of Section 145 but the later part of the order placing the disputed property under attachment under sub-section (1) of section 146 is without jurisdiction and cannot be sustained in law. " ( 6 ) FOR the above reasons, Sri C. H. Hanumantharaya, learned counsel for the petitioner submits that order under challenge be quashed and a direction be given to the Executive Magistrate to pass appropriate orders in accordance with law. ( 7 ) WHEREAS Sri Sequera, learned counsel for the respondents fairly submits that the order under challenge is a composite order. If the Executive magistrate had applied his mind to the provisions of Sections 145 and 146, Cr. P. C, definitely orders would have been in some other form. Either his failure to understand the provisions of law or his non-application of mind to the same has resulted in causing great loss to his clients. According to him, this is an unfortunate case where fight is between right and the might and his client is worshipping a rights whereas his opponent U riding on a might However, he submits that in order to see that justice is rendered to both the parties, it is proper if a direction is given to the Executive Magistrate to pass an order strictly under Sections 145 and 146, cr. P. C. He also submits that before passing any final order, his client may be permitted to appear through an advocate. P. C. He also submits that before passing any final order, his client may be permitted to appear through an advocate. ( 8 ) RECORDING the submission of both sides, without expressing any opinion on merits of the case, the order under challenge is set aside. Criminal petition is allowed directing the Executive magistrate that if he wants to proceed with enquiry, he can proceed strictly in conformity with Sections 145 and 146, Cr. P. C. and then pass appropriate orders within 15 days from the date of receipt of this order. If the parties choose to engage Advocates, Executive Magistrate shall permit them to engage Advocates on their behalf. Both the parties shall appear before the Executive magistrate on 14-8-1991 at 3 p. m. without insisting any notice from the Taluka Executive magistrate. After recording their appearance, executive Magistrate shall dispose of the case either on that day or any day within 15 days from the date of receipt of this order. --- *** --- .