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2004 DIGILAW 188 (ORI)

MADHURI SAHU v. SURESWARA SAHU

2004-04-09

L.MOHAPATRA

body2004
L. MOHAPATRA, J. ( 1 ) THIS revision is directed against the judgment and order dated 12-12-2001 passed by the learned Additional district Judge (Fast Track Court), Bargarh in Criminal Revision No. 105/4 of 1994- 2001 directing the proceeding under Section 145 of the Code of Criminal Procedure to be dropped. ( 2 ) THE first party in the proceeding under Section 145, Cr. P. C. is the petitioner before this Court. From the record it appears that the petitioner filed an application before the Executive Magistrate, Bargarh for initiation of a proceeding under'section 145, cr. P. C. and the said petition was registered as Misc. Case No. 116 of 1994. By order dated 27-8-94 the Executive Magistrate initiated a proceeding directing the opposite party to show-cause and attached the land under Section 146 (1) of Cr. P. C. After receipt of notice the opposite party entered appearance and one Sureswar Sahu also intervened the matter as third party in the proceeding and hearing was concluded on the question of continuance of attachment order. By order dated 15-9-94 the Executive Magistrate passed an order directing attachment order to continue till disposal of the case. Said order was challenged In revision before the learned Additional Sessions Judge (Fast track Court) Bargarh and after hearing the parties in the impugned judgment the revisional Court held that the initiation of the proceeding under Section 145, Cr. P. C. was bad In law and directed the Executive magistrate to drop the proceeding. ( 3 ) FACTS leading to initiation of the case are that one Baladev Sahu of village surandapali was the original owner of the disputed properties and was in exclusive possession thereof till his death in March, 1982. Said disputed land was the subject- matter of dispute in Title Suit No. 64 of 1983 pending in the Court of learned Civil Judge (Senior Division), Bargarh. After death of baladev Sahu properties were succeeded his widow, two daughters and sons. The two daughters are Kuntala who died in the year 1982 and Madhuri who is the present petitioner. After death of Kuntala her husband and two sons as well as three daughters filed a suit for partition of the land of Late Baladev sahu and in the said suit the petitioner, lakhpati and Dhoba were arrayed as defendants. The two daughters are Kuntala who died in the year 1982 and Madhuri who is the present petitioner. After death of Kuntala her husband and two sons as well as three daughters filed a suit for partition of the land of Late Baladev sahu and in the said suit the petitioner, lakhpati and Dhoba were arrayed as defendants. On 29-10-1984 preliminary decree was passed in the said suit and a petition was filed for initiation of final decree proceeding. During pendency of the final decree proceeding husband of Kuntala namely premaraj expired. The legal heirs of Kuntala were already on record. Lakhpati who is son of Baladev Sahu also expired in the year 1989 and wife and daughter namely saudamini and Mamta were substituted. After such substitution the final decree proceeding again continued. While the final decree proceeding was continuing as such, the petitioner filed an application under section 145, Cr. P. C. which was registered as Criminal Misc. Case No. 250 of 1989 and the properties involved in the suit being the subject-matter of dispute in the proceeding under Section 145, Cr. P. C. an attachment order was passed under Section 146 (1) of cr. P. C. The Executive Magistrate appointed one Okhila Sahu as receiver. Said proceeding ultimately terminated in a compromise vide order dated 14-12-1992. On 27-9-1991 during pendency of the suit Ac. 1. 37 decimals of land was transferred by Saudamini in favour of the present opposite party through a registered sale-deed. It is submitted by the learned counsel for the petitioner that in the written statement filed by soudamani in the aforesaid suit she challenged the sale-deed executed In favour of the present opposite party and accordingly it was contended that the sale never followed with delivery of possession. The opposite party who claimed to have purchased a portion of the suit land as stated above was impleaded in the suit. In the year 1992 the petitioner filed Misc. Case No. 52 of 1992 under Order 39, Rule 1 and Order 40, Rule 1 of CPC in the said suit to restrain the opposite party from entertaining into the disputed land as well as for appointment of receiver. In May, 1994 the said Misc. Case was dismissed and an appeal was carried to the Court of learned Additional Sessions judge and was registered as M. A. No. 12 of 1994. While the Misc. In May, 1994 the said Misc. Case was dismissed and an appeal was carried to the Court of learned Additional Sessions judge and was registered as M. A. No. 12 of 1994. While the Misc. Appeal was pending disposal, the present proceeding under Section 145, Cr. P. C. was initiated at the instance of the present petitioner against saudamini and others and the learned Magistrate passed an order under Section 145, cr. P. C. directing attachment of the suit properties. In the proceeding under Section 145, Cr. P. C. the present opposite party filed an application to be impleaded on the ground that he has purchased the property from Saudamini and he was allowed to be impleaded as third party to the proceeding by order dated 27-8-1994. Thereafter the learned Executive Magistrate after hearing the parties directed the attachment order to continue till disposal of the proceeding under Section 145, Cr. P. C. or till disposal of the M. A. pending before the learned Additional District Judge. On 13-4-1995 the M. A. was dismissed by the learned Additional sessions Judge and Civil Revision No. 135 of 1995 was filed before this Court. In the said revision the parties were directed to maintain status in respect of the suit properties and the learned Civil Judge (Senior division), Bargarh was directed to dispose of the main case as early as possible. On 8-10-96 the final decree proceeding was dropped as parties did not take any step and the present opposite party filed a petition to proceed with the final decree and the same is sub-Judice before the learned Civil Judge (Senior Division), Bargarh. In the year 1997 the petitioner filed Title Suit No. 3 of 1997 in the Court of the learned Civil Judges (Senior Division), Bargarh praying for a declaration that the registered sale-deed dated 27-9-91 executed in favour of the opposite party is inoperative and not binding on her and the opposite party does not derive any title under the same. The suit was decreed on 18-9-1998. However, in the meantime the revision filed against the order of the Executive Magistrate directing attachment order to continue was challenged in revision before the learned Additional District Judge and the proceeding was directed to be dropped. The suit was decreed on 18-9-1998. However, in the meantime the revision filed against the order of the Executive Magistrate directing attachment order to continue was challenged in revision before the learned Additional District Judge and the proceeding was directed to be dropped. So far as the decree passed in Title Suit No. 3 of 1997 is concerned, it appears that the opposite party has already preferred an appeal being registered as Title Appeal No. 38 of 1998 which is pending disposal. ( 4 ) LEARNED counsel for the petitioner submitted that the revisional Court committed an error of facts and without going through the entire background of the case held that initiation of the proceeding was bad in law. It was further contended that the observation of the revisional Court that the petitioner was entitled to more than 1 / 12th share is based on no material as the suit schedule lands have not been partitioned. In connection with he aforesaid two grounds learned counsel further submitted that since in the partition suit only preliminary decree has been passed and final decree proceeding is still pending, each cosharer has got right over the lands so long as it has not been partitioned by metes and bounds. It was further argued that since the civil Court had not made any arrangement with regard to management of the property, the order of the Executive Magistrate directing continuance of the attachment order was justified. Reliance is placed by the learned counsel for the petitioner on some decisions of the Apex Court, which are also referred, in the revisional order impugned before this court. Learned counsel also referred to the decision of the Apex Court in the case of prakash Chand Sachdev v. The State, reported in AIR 1994 SC 1436 : (1994 Cri LJ 2117) and submitted that Section 145, cr. P. C. can be invoked whenever a person is likely to commit breach of peace or disturb public tranquillity and such a proceeding could not be dropped on the ground of pendency of civil suit. Learned counsel appearing for the opposite party supporting the revisional order submitted that while the civil Court on consideration of materials before it refused to pass an order of injunction or appoint a receiver, the Executive magistrate in a proceeding under Section 145, Cr. P. C. had no jurisdiction to pass an order of attachment. Learned counsel appearing for the opposite party supporting the revisional order submitted that while the civil Court on consideration of materials before it refused to pass an order of injunction or appoint a receiver, the Executive magistrate in a proceeding under Section 145, Cr. P. C. had no jurisdiction to pass an order of attachment. ( 5 ) ON consideration of the arguments advanced by the learned counsel for both sides and on perusal of the impugned orders, it is clear that Madhuri Sahu who is the first party and the petitioner before this court is the daughter of Baldev Sahu who died leaving behind one son, two daughter including the petitioner and the widow. At the time of his death Baladev had left Ac. 15. 16 decimals of land. Kuntala who is other daughter of Baladev Sahu died in the year 1982 leaving behind five children. Children of Kuntala filed suit for partition in the Court of the learned Sub-Judge, Bargarh wherein the present petitioner, son of Baladev namely lakhpati and widow of Baladev Sahu were defendants. A preliminary decree was passed in the said suit (T. S. No. 64 of 1983) in October, 1984. An application was filed for making the preliminary decree final. On 27-9-1994 Soudamini Sahu wife of Lakhpati sold Ac. 1. 37 decilams of land in favour of the opposite party by a registered sale-deed and he was put in possession. After purchase of the said property the opposite party got himself added as party in the final decree proceeding. The petitioner filed an application in the final decree proceeding to restrain the opposite party from going upon the suit land for appointment of receiver. Said prayer was turned down and a Misc. Appeal was carried against the said order. After dismissal of the Misc. Appeal a civil revision was filed before this Court which was also dismissed. When the present petitioner did not get any relief in the said final decree proceedings, she allowed the proceeding to be dropped on 8-10-1996. Thereafter, the opposite party filed a petition for proceeding with the final decree and accordingly the same was revived and is sub-judice. It further appears that suppressing all these facts a petition was filed before the Executive Magistrate in the proceeding under section 145, Cr. P. C. and the Executive Magistrate directed attachment of the entire property. Thereafter, the opposite party filed a petition for proceeding with the final decree and accordingly the same was revived and is sub-judice. It further appears that suppressing all these facts a petition was filed before the Executive Magistrate in the proceeding under section 145, Cr. P. C. and the Executive Magistrate directed attachment of the entire property. Even accepting the case of the petitioner that pendency of civil cases does not put a bar on the Executive Magistrate to entertain a proceeding under Section 145, Cr. P. C. , no attachment order could be passed in respect of the entire property when dispute related to part of which had been sold. On perusal of the revisional order I find that the revisional Court has thoroughly discussed all the materials placed before it and came to conclusion that the proceeding under Section 145, Cr. P. C. could not have been initiated and the parties should have been approached the Civil Court for appropriate relief when the matter was pending in the civil Court. Moreover, without looking into various orders passed by the Civil Court, the executive Magistrate mechanically decided to continue the attachment order without assigning any reason. ( 6 ) I, therefore, do not find any justification to interfere with the impugned order and according the revision is dismissed. Petition dismissed.