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2003 DIGILAW 733 (PAT)

Nemani Sah & Kiran Devi v. State

2003-07-22

INDU PRABHA SINGH

body2003
Judgment 1. Heard learned counsel for the parties. 2. This application has been filed for quashing the order dated 05.12.2001, passed by the learned Executive Magistrate, Banka in Miscellaneous Case No. 260 of 1997, by which the learned Executive Magistrate has attached the property owned by the Petitioners and also ordered to appoint the Circle Officer as a receiver to the land in dispute under the provision of section 146 (1) of the Code of Criminal Procedure (in short the Code). 3. Perused the order impugned. It appears that the proceeding under section 144 of the Code was initiated appertaining to the land having Plot No. 1392 Khata No. 299 in village-Dhomnion on the application of opposite party no. 2 in the month of April, 1997, thereafter, he converted the proceeding under section 145 of the Code. After two months without any emergency, the court attached the land in question after four and a half years under section 146 (1) of the Code vide order dated 05.12.2001. The order impugned does not disclose the situation which warranted the court for attaching the land under section 146 (1) of the Code. The order of attachment especially in the view that opposite party no. 2 filed a Title Suit No. 51 of 1997, which is pending before the Sub-judge, Banka (Annexure-4) and if there was any compelling reason, the opposite parties should have moved before the Civil Court for remedial measure. The petitioners have annexed the sale deed which has been executed in the name of Kiran Devi and she is still paying rent for which receipt has also been granted to her. A copy of the Title Suit has also been annexed showing that the case was filed appertaining to the same disputed land in the court for declaration of title. 4. It is well settled that when the civil case is pending in the competent court, in such a situation criminal proceeding appertaining to the same matter cannot be allowed to continue. 5. In above view of the matter, the impugned order dated 05.12.2001, passed by the Executive Magistrate, Banka is hereby quashed and the parties are directed to approach to the competent court. 6. The petition is, accordingly, allowed 7. However, if the learned Magistrate is satisfied that there is apprehension of breach of peace, he may pass an appropriate order.