(1.)THIS is a criminal reference submitted by learned Sessions Judge, Jodhpur, recommending that the order of Sub-Divisional Magistrate, Jodhpur, dated January 27, 1908, for the appointment of a receiver to manage the attached house in Case no. 42 of 1967, under Section 145, Cr. P. C. be quashed.
(2.)PARTY No. 1, Sajjan Singh son of Bhairun Singh, it is alleged, made a report at the Police Station, Bilara, with the allegation that Sajjan Singh, son of Jagannath singh, Party No. 2, forcibly occupied his house, situate in village Chokri Kallan, on october 16, 1967, and that there was every possibility of breach of the peace. On receipt of the above report, the Station House Officer of the said Police Station proceeded on the spot, on October 27, 1967, conducted inquiry and apprehended that there was imminent danger of breach of the peace. He then submitted a report, on October 28, 1967, to the court of Sub-Divisional Magistrate, Jodhpur, for taking immediate action by way of attaching the house in dispute. That very day the Sub-Divisional Magistrate drew up a preliminary order and attached the premises in question. Thereafter on November 9, 1967, Party No. 1, applied to the court for the appointment of a receiver. On January 27, 1968, learned Sub-Divisional Magistrate, Jodhpur, issued direction appointing Tehsildar, Bilara, as a receiver, to look after and preserve the property. It may also be stated here that party No. 2 filed a civil suit in the Court of civil judge, Jodhpur, in respect of this very property and obtained a temporary injunction against party No. 1 on January 25, 1968. A revision application was filed by party No. 2 against the order of Sub-Divisional Magistrate, dated January 27, 1968, in the court of learned Sessions Judge, Jodhpur. Learned Judge observed in his order of reference that the Magistrate was not competent to appoint a receiver and that a criminal court should respect temporary injunction, issued by the civil court. He mainly relied on Mewa Lal v. Emperor, AIR 1918 Pat 197, Diwan Chand v. Emperor, AIR 1929 Lah 223, malkappa v. Padmanna, AIR 1959 Mys 122 and Brojendra Kumar Sen Gupta v. Jitendra Chandra Sen, AIR 1960 Assam 111 (SB) and recommended that the order of the Sub-Divisional Magistrate, dated January 27, 1968, be quashed.
(3.)THE order of attachment of the house including the furniture and other articles was made as far back as October 28, 1967. That order was not challenged in any revision petition. That order is the parent order. The order appointing the Tehsildar as a receiver is only a follow-up one, directing him to look after and preserve the property. When the principal order was not assailed, the consequential order could not have been challenged. The attachment having been made, on October 28, 1967, there was no other alternative for the Criminal court but to take into its possession the property in dispute. Thus the subsequent order was merely of administrative nature.