http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

DHARAMPAL AND ORS.

Vs.

RESPONDENT:

SMT. RAMSHRI AND ORS.

DATE OF JUDGMENT07/01/1993

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

SAHAI, R.M. (J)

CITATION:

1993 AIR 1361 1993 SCR (1) 1

1993 SCC (1) 435 JT 1993 (1) 61

1993 SCALE (1)12

ACT:

Criminal Law:

Criminal Procedure Code, 1973:

Section 146--Attachment Order--When comes to an end--Whether

Magistrate can withdraw the order when the civil court was

seized of the matter--Determination of the tights of

parties--Whether to be final for cessation of attachment

order and its withdrawal.

Sections 397(3) and 482--Second revision application by same

party--Whether could be entertained by High Court when the

first appellate court has already rejected the first revison

application--Whether High Court can exercise its

jurisdiction when such exercise was specifically barred by

the Code.

HEADNOTE:

There was a dispute between the appellants and the first

respondent, regarding the possession of a house. On an

application filed by the respondent under Section 145 of

Criminal Procedure Code, 1973, before the Sub Divisional

Magistrate, claiming ownership of the suit property, the

Magistrate passed a preliminary order under Section 145 of

the Code, and thereafter, made an order of attachment under

Section 146 directing that the attachment would continue

till the competent civil court determined the rights of the

parties. On a revision riled by the appellants, the

Sessions Judge granted an interim stay of Magistrate's

order. Subsequently, the Revision application was

dismissed. Ile Magistrate passed a fresh attachment order

under Section 146. Once more in revision the Sessions Judge

passed an order staying the fresh order of attachment.

Thereafter, the appellants riled a suit for permanent

injuction and also an interim injunction. The trial court

dismissed the application for interim injunction. On

appeal, the District Court issued an interim injunction

against 1st respondent and her husband. Subsequently, the

2

Criminal Revision preferred by the appellant was dismissed

by the Sessions Judge also on the ground that the civil suit

was preferred by the appellant. Once again, the Magistrate

passed another order attaching the property but this third

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

order of attachment was stayed by the Sessions Judge for a

period of 15 days.

Thereafter, on an application by the appellants for

withdrawal of attachment on the ground that there was no

apprehension of a breach of the peace, the Magistrate order

withdrawal of attachment. The Revision filed by the 1st

respondent against the Magistrate's order was dismissed by

the Sessions Judge.

On an application under Section 482 of the Code filed by

Respondent No.1 for quashing the order withdrawing the

attachment and for directing the attachment to continue, the

High Court held that it was not open to the Magistrate to

withdraw the attachment till the competent court had decided

the matter finally and restored the attachment. Hence the

appeal.

Allowing the appeal, this Court

HELD : 1.1. The determination by a competent court of the

rights of the parties spoken in Section 146(1) of the

Criminal Procedure Code, 1973, has not necessarily to be a

final determination. The determination may be even

tentative at the interim stage when the competent court

passes an order of interim injunction or appoints a receiver

in respect of the subject-matter of the dispute pending the

final decision in the suit. The moment the competent court

does so, even at the interim stage, the order of attachment

passed by the Magistrate has to come to an end. Otherwise,

there will be inconsistency between the order passed by the

civil court and the order of attachment passed by the

Magistrate. The proviso to sub-section (1) of Section 146

itself takes cognizance of such a situation. When a civil

court passes an order of injunction of receiver, it is the

civil court which is seized of the matter and any breach of

its order can be punished by it according to law. Hence, on

the passing of the interlocutory order by the civil court,

there is no longer any likelihood of the breach of the peace

with regard to the subject of dispute. Under Section 146(2)

the Magistrate can withdraw the order of attachment passed

by him even during the pendency of the dispute in the civil

court. When the civil court appoints a receiver, the order

of attachment passed by the Magistrate, necessarily

3

gives way to the order of the civil court appointing the

receiver. It is only when the civil court does not appoint

the receiver that the Magistrate may make arrangements for

looking after the property or even appoint a receiver

himself However, even when such a receiver is appointed and

the civil court subsequently appoints a receiver of its own,

the Magistrate has to order the receiver appointed by him to

hand over the possession of the subject in dispute to the

receiver appointed by the civil court and discharge the

receiver appointed by him. He has also to pass such other

incidental or consequential orders as he thinks just. Such

order may include an order of withdrawal of the attachment,

in view of the seizure of the matter by the civil court and

the consequent want of apprehension of breach of the peace.

It is, therefore, not correct to say that the property

continues to remain under attachment of the Magisterial

order till the rights of the parties are decided finally by

the competent court of law. [7G-H, 8A-C, D-F]

1,2. In tic present case, the Appellate Civil Court has

already passed an order of injunction against the 1st

respondent and her husband by virtue of which the possession

continues to be with the appellants. Therefore, the

Magistrate had not erred in withdrawing the attachment. The

High Court has erred in holding that the order passed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

Sub-Divisional Magistrate withdrawing attachment was without

jurisdiction. [8G-H, 6E]

2.1. Section 397 (3) bars a second revision application by

the same party. It is now well settled that the inherent

powers under Section 482 of the Code cannot be utilised for

exercising powers which are expressly barred by the Code.

[6D]

2.2. In the instant case, admittedly, the 1st respondent had

preferred a Criminal Application to the Sessions Court

against the order passed by the Magistrate, withdrawing the

attachment. The Sessions Judge had dismissed the said

application. Hence, the High Court had clearly erred in

entertaining the second revision at the instance of 1st

respondent. [6C,E]

3. The Magistrate had committed an error in passing the

subsequent orders of attachment when the first attachment

was never finally vacated and had revived the moment the

revision application flied against It was dismissed by the

Sessions Judge. None of the parties, including the Sessions

Judge, realised this error on the part of the Magistrate.

The Sessions Judge had also committed a patent mistake in

entertaining

4

revision application against the fresh orders of attachment

and granting interim stays when he had dismissed revision

application against the order of attachment earlier. [6A-B]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 667 of

1980.

From the Judgment and Order dated 31.7.1980 of the Allahabad

High Court in Crl. Misc. Appln. No. 5296 of 1979.

M.V. Goswami for the Appellants.

Vishnu Mathur, A.S. Pundir and R.C. Verma for the

Respondents.

The Judgment of the Court was delivered by

SAWANT, J. The admitted facts in the present case are as

follows. The suit property consists of house No. 336 of

village Khonda, District Mathura. The dispute with regard

to the possession of the property arose between the

appellants and the respondent Ramshri. She filed an

application under Section 145 of Criminal Procedure Code

[Code] before the Sub Divisional Magistrate, Sadabad in

which she claimed ownership of the suit property. On 31st

May, 1976, the learned Magistrate passed a preliminary order

under Section 145 of the Code and thereafter on 22nd April,

1977 made an order of attachment under Section 146 directing

that the attachment would continue till the competent civil

court determined the rights of the parties with regard to

the said property. Against this order, a Revision being Cr.

Revision No. 27/1977 was filed by the appellants before the

Sessions Judge who by his interim order dated 23rd April,

1977 stayed operation of the learned Magistrate's order.

However, before the interim stay order could be

communicated, the attachment had already been effected. The

learned Sessions Judge, therefore, again, by another interim

dated 26th April, 1977 directed the police to restore the

possession the property to the appellants from whom

allegedly the possession of the property was taken. The

possession was restored to the appellants on 28th April,

1977. The said Revision application was dismissed on 18th

August, 1977. Though, on account of the dismissal of the

Revision, the order of attachment passed by the Magistrate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

revived, the learned Magistrate passed a fresh order dated

31st January, 1978 under Section 146 attaching the property

in dispute. Against the said order, once more a revision

being Cr. R.No. 19/1978 was preferred by the appellants to

the

5

Sessions Judge who on 2nd February, 1978 passed an order

staying the fresh order of attachment passed by the

Magistrate.

2. Thereafter, the appellants filed a suit for permanent

injunction against the 1st Respondent and her husband, and

in that claimed an interim injunction against them. The

trial court dismissed the application for interim

injunction. Against the order of dismissal, the appellant

filed an appeal to the District Court, and the appellate

court by its order dated 18th May, 1978, allowed the appeal

and issued an interim injunction against 1st respondent and

her husband. Thereafter Cr. Revision No. 19/1978 preferred

by the appellant before the Sessions Judge was dismissed on

15th June, 1978 also on the ground that the civil suit was

preferred by the Appellant. Again, although the order of

attachment stood revived and the order of interim injunction

by the Civil Court still continued, the Magistrate on 25th

July, 1978 passed another order attaching the property.

Against this third order of attachment passed by the

Magistrate, a revision was filed by the Appellants before

the Sessions Judge and the Sessions Judge by his order dated

26th July, 1978 stayed the order of attachment issued on

25th July, 1978, upto 10th August, 1978.

On 26th July, 1978, the appellant filed an application

before the Magistrate for withdrawal of attachment on the

ground that there was no apprehension of a breach of the

peace. On this application, on 17th October 1978, the

Magistrate ordered withdrawal of attachment. Against this

order, the 1st Respondent filed revision being Cr. R.No.

180/78 before the Sessions Judge who dismissed the same on

14th May, 1979.

Respondent No. 1 thereafter, preferred an application under

Section 482 of the Code before the High Court for quashing

the order withdrawing the attachment and directing the

attachment to continue. The High Court by the impugned

order took the view that it was not open to the learned

Magistrate to withdraw the attachment till the competent

Court had decided the matter finally and restored the

attachment.

3. On these facts, two questions arise in this appeal viz.

whether the High Court could entertain the second revision

application in exercise of its inherent powers under Section

482 of the Code and whether the interpretation placed by the

High Court on the provisions of Sections 145 and 146 of the

Code is correct.

6

4. There is no doubt that the learned Magistrate had

committed an error in passing the subsequent orders of

attachment when the first attachment was never finally

vacated and had revived the moment the revision application

filed against it was dismissed by the learned Sessions

Judge. It appears that none of the parties including the

Sessions Judge realised this error on the part of the

Magistrate. The learned Sessions Judge had also committed a

patent mistake in entertaining revision application against

the fresh orders of attachment and granting interim stays

when he had dismissed revision application against the order

of attachment earlier. Let that be as it is. The question

that falls for our consideration now is whether the High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

Court could have utilised the powers under Section 482 of

the Code and entertained a second revision application at

the instance of the 1st respondent. Admittedly the 1st

respondent had preferred a Criminal Application being Cr.

R.No. 180/78 to the Sessions Court against the order passed

by the Magistrate on 17th October, 1978 withdrawing the

attachment. The Sessions Judge had dismissed the said

application on 14th May, 1979. Section 397 (3) bars a

second revision application by the same party. It is now

well settled that the inherent powers under Section 482 of

the Code cannot be utilised for exercising powers which are

expressly barred by the Code. Hence the High Court had

clearly erred in entertaining the second revision at the

instance of 1st respondent. On this short ground itself,

the impugned order of the High Court can be set aside.

5. However, since the High Court has also proceeded to

interpret the provisions of Sections 145 and 146 of the

Code, it has become necessary to set things right on that

score as well.

We are afraid that the High Court has erred in holding that

the order passed by the Sub-Divisional Magistrate on 17th

October, 1978 [17.9.78 (sic.)] withdrawing attachment, was

without jurisdiction. The provisions of Section 146 of the

Code are clear in this respect. The Section reads as

follows:

"146. Power to attach subject of dispute and

to appoint receiver. (1) If the Magistrate at

any time after making the order under sub-

section (1) of Section 145 considers the case

to be one of emergency, or if he decides that

none of the parties was then in such

possession as is referred to in Section 145,

or if he is unable to satisfy himself as to

which of them was then in such

7

possession of the subject of dispute, he may

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:

Provided 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.

(2) When the Magistrate attaches the subject

of dispute, he may, if no receiver in relation

to such subject of dispute has been appointed

by any Civil Court, make such arrangements as

he considers proper for looking after the

property or if he thinks fit, appoint a

receiver thereof, who shall have, subject to

the control of the Magistrate, all the powers

of a receiver appointed under the Code of

Civil Procedure, 1908 (5 of 1908):

Provided that in the event of a receiver being

subsequently appointed in relation to the

subject of dispute by any Civil Court, the

Magistrate

[a] shall order the receiver appointed by him

to hand over the possession of the subject of

dispute to the receiver appointed by the Civil

Court and shall thereafter discharge the

receiver appointed by him:

[b] may make such other incidental or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

consequential orders as may be just."

It is obvious from sub-section (1) of Section 146, that the

Magistrate is given power to attach the subject of dispute

"until the competent Court has determined the rights of the

parties thereto with regard to the person entitled to the

possession there or. The determination by a competent Court

of the rights of the parties spoken of there has not

necessarily to be a final determination. The determination

may be even tentative at the interim stage when the

competent Court passes an order of interim injunction or

appoints a receiver in respect of the subject-matter of the

dispute pending the final decision in the suit. The moment

the competent Court does so, even at the interim stage, the

order of attachment passed by the Magistrate has to come to

an end. Otherwise, there will be inconsistency

8

between the order passed by the civil court and the order of

attachment passed by the Magistrate. The proviso to sub-

section (1) of Section 146 itself takes cognizance of such a

situation when it states that "Magistrate may withdraw the

attachment at any time if he is satisfied that there is no

longer any likelihood of any breach of peace with regard to

the subject of dispute'. When a civil Court passes an order

of injunction or receiver, it is the civil Court which is

seized of the matter and any breach of its order can be

punished by it according to law. Hence on the passing of

the interlocutory order by the civil Court, it can

legitimately be said that there is no longer any likelihood

of the breach of the peace with regard to the subject of

dispute.

The fact that the Magistrate can withdraw the order of

attachment passed by him even during the pendency of the

dispute in the civil Court is made further clear by the

provisions of sub-section (2) of Section 146. When the

civil Court appoints a receiver, the order of attachment

passed by the Magistrate necessarily gives way to the order

of the Civil Court appointing the receiver. It is only when

the civil Court does not appoint the receiver that the

Magistrate may make arrangements for looking after the

property or even appoint a receiver himself However, even

when such a receiver is appointed and the civil Court

subsequently appoints a receiver of its own, the Magistrate

has to order the receiver appointed by him to hand over the

possession of the subject in dispute to the receiver

appointed by the civil Court and discharge the receiver

appointed by him. He has also to pass such other incidental

or consequential orders as he thinks just. Such order may

include an order of withdrawal of the attachment in view of

the seizure of the matter by the civil Court and the

consequent want of apprehension of breach of the peace. It

is, therefore, not correct to say as held by the High Court

that the property continues to remain under attachment of

the Magisterial order till the rights of the parties are

decided finally by the competent Court of law. That appears

to be the purport of the High Court's order since in the

present case the appellate civil Court has already passed an

order of injunction against the 1st Respondent and her

husband by virtue of which the possession continues to be

with the appellants.

In this view of the matter, the Magistrate had not erred in

withdrawing the attachment by his order dated 17th October,

1978.

9

6. For both these reasons, the appeal is allowed and the

impugned order of the High Court is set aside. It is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

necessary to add that the suit as filed by the Appellants

is only for a permanent injunction. The appellants must

amend the plaint for claiming also the declaration of their

title to the property in question.

N.P.V. Apppeal allowed.

10