HIGH COURT OF HIMACHAL PRADESH
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T.R.HANDA,J. - -
(1.) 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.;
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