- (1.) S. P. Srivastava, J. Feeling aggrieved by an order passed by the 1st Additional District and Sessions Judge, Gorakhpur allowing the criminal revision filed by the respondent No. 3, Gulab Chand and quashing the proceeding under Section 145 of the Criminal Procedure Code including the order dated 5-6-1996 whereunder the property in dispute was attached and put in the Supurdigi of an independent person subject to the orders passed by the Civil Court terminating the proceedings, the petitioner has now approached this Court seeking redress praying for the quashing of the revisional order.
(2.) I have heard the learned Counsel for the petitioner and the learned Counsel representing the contesting respondents and have carefully perused the record. The fact in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. The petitioner had filed original suit No. 448 of 1977 against the respondents Nos. 3 and 4 seeking a declaration that he was the owner in possession of the portion shown by red colour in the map attached with the plaint on the basis of the private partition affected in the year 1976 with which the defendants had no concern. The aforesaid suit was decreed by the Trial Court on 12-9-1977 providing that the compromise shall form part of the decree. In the compromise it had been admitted by the contesting respondents that the portion of the house in dispute which was shown by red colour exclusively belonged to the plaintiff who was in possession thereof. The plaintiff filed another suit being original suit No. ; 1355 of 1995 in the Court of Civil Judge Junior Division Gorakhpur against the contesting respondents seeking a decree of permanent injunction restraining the defendants from interfering in the possession of the petitioner over the property in dispute which was the same in respect whereof the claim of the plaintiff had been decreed in the earlier suit. In suit No. 1355 of 1995, it had been asserted that on 10-9-1995, the defendants had threatened to interfere in the possession of the plaintiff over the property in dispute. In the latter suit, the plaintiff had filed an application seeking a temporary injunction on which application, the Trial Court vide its order dated 11-9-1995 had issued an ad interim injunction requiring the parties to maintain status-quo on the spot till 12-10-1995. This order of interim injunction was extended from time to time. During the pendency of the aforesaid suit and currency of the interim injunction granted by the Trial Court on a police report the Magistrate initiated the proceedings under Section 145 of the Criminal Procedure Code and preliminary order was passed by the Magistrate on 1-1-1996 attaching the property in dispute which formed part of the portion which stood allotted to the plaintiff which was the subject- matter of the suit referred to hereinabove. In the police report, it had been pointed out that on 3rd October, 1995, Gulab Chand has taken possession of the portion in dispute which form part of the residential house of Ishwar Chand in his absence.
(3.) THE Magistrate came to the conclusion that there was apprehension of breach of peace in spite of the interim order having been granted by the Civil Court of competent jurisdiction and in order to maintain peace on the spot, it was necessary to keep the shop in dispute attached under Section 146 of the Criminal Procedure Code. THE Magistrate accordingly attached the property subject to the orders passed by the civil court and directed for its putting to be in the supurdigi of an independent person. THE attachment was affected on 6-6-1995. Gulab Chand thereafter filed the revision. The revisional Court came to the conclusion that taking into consideration the pendency of the civil suit and the interim order of injunction granted therein, there was no justification for passing an order under Section 146 (1) of the Criminal Procedure Code and in fact the proceedings under Section 145 of the Civil Procedure Code should not have been initiated at all. The revision was accordingly allowed and the entire proceedings culminating in the order of attachment under Section 146 (1) of the Criminal Procedure Code was quashed.;