Asthana, J. - (1.) This is a reference by the learned Additional District Magistrate, Bulandshahr, recommending that the order of the learned trial Magistrate rejecting the application of the applicant for the release of the attached property may be set aside and the property in dispute may be released in favour of the applicant.
(2.) It appears that the applicant Maqsood Ali Khan made an application under Section 145 Criminal Procedure Code in respect of the disputed property. The learned Magistrate attached the property after he was satisfied from the police report that there was an apprehension of the breach of the peace and passed a preliminary order directing both the parties to file their written statements. In compliance of the aforesaid order both the parties filed their written statements and claimed possession over the property in dispute. The learned Magistrate was unable to come to any definite conclusion with regard to possession after a consideration of the evidence produced by the parties and he, therefore, passed an order under Section 146, Criminal Procedure Code directing the continuance of the attachment till one of the parties had got his right established to the property from the competent court.
(3.) It appears that Maqsood Ali Khan had already made an application for mutation of his name over the property in dispute in the revenue court and that case was pending at the time of the hearing of the case under Section 145, Criminal Procedure Code. This mutation case was subsequently decided in favour of the applicant and it was ordered that the disputed property was to be mutated in his name. An appeal was filed against this decision before the Commissioner who stayed the order of the Assistant Collector regarding the mutation of the name of the applicant. After the applicant had obtained the decision of the Assistant Collector in the mutation case in his favour he made an application to the learned Magistrate for the release of the attached property in his favour. The learned Magistrate rejected the application on the ground that the order of the Assistant Collector for the mutation of the name of the applicant had been stayed by the Commissioner till the disposal of the appeal pending before him. Against this decision of the learned Magistrate the applicant went up in revision before the learned District Magistrate. He was of the opinion that the learned Magistrate was not bound to wait till the decision of the appeal by the Commissioner, nor he was bound by the stay order which had been passed by the Commissioner and which was addressed to the Assistant Collector who had decided the mutation case. Relying on a decision reported in Ram Sri v. Sri Krishan, 22 ALJ 803 he came tO the conclusion that the learned Magistrate should have released the attachment in favour of the applicant after he had obtained the mutation order in his favour from the competent revenue court which was that of the Assistant Collector, 1st Class.;