M.N. Shukla, J. - (1.) THIS reference is directed against the order dated 12 -4 -1967 passed by the S.D.M., Faridpur, district Bareilly in the matter of the release of the disputed property from attachment in proceedings Under Section 145 Code of Criminal Procedure.
(2.) THE facts giving rise to this reference are that the property which was the subject matter of those proceedings consisted of agricultural plots grove and some residential quarters situate in village Kareli, Tahsil and district Bareilly. The proceedings commenced on an application dated 8 -6 -1966 made by Sadiq Husain Applicant, the Up Pradhan of the Gram Samaj, Kareli. The allegations made by him were that the property belonged to H.W.M. Hearsey and his sister who left this country after independence and were said to have died heirless, that the property vested in the Gram Samaj and the Applicant became its owner in his capacity as Up Pradhan, that the opposite parties were determined to disturb his possession giving rise to grave apprehension of breach of peace and hence it was prayed that an order Under Section 145 Code of Criminal Procedure be passed. The application was accompanied by an affidavit with the result that on the same day the City Magistrate passed a preliminary order pointing out that from the affidavit he was satisfied that there existed dispute between the parties likely to cause apprehension of breach of peace. The preliminary order recited that "as the matter is of emergency the property in dispute is ordered to be attached and placed in some reliable custody pending enquiry." It would thus be evident that the order of attachment was passed on the same day as the preliminary order and was in fact incorporated in the preliminary order itself. This order could be passed only under the third proviso to Sub -section (5) of Section 145 Code of Criminal Procedure. The aforesaid order was sent to the Kotwali for compliance. On 1 -7 -1966 opposite party No. 5 filed an objection supported by an affidavit stating that H.W.M. Hearsey and his sister were alive and were leading retired life in France and they had executed a sale -deed of the said property in favour of the contesting opposite parties through their general attorney Sri A.B.L. Agnihotri of Kanpur and that they were in possession as vendees. It was also stated that the order of attachment, if given effect to, would cause irreparable loss and injury to them. Thereupon the City Magistrate passed an ex parte order on 1 -7 -1966 and directed the Tahsildar as under: Please return the attachment order unexecuted to this Court immediately if it has not been executed so far. A report was received from the Tahsildar on 27 -7 -1966 showing that the attachment had been made on 19 -6 - 1966 and the order had already been executed by the Sadar Qanungo.
(3.) THE case was later transferred to the file of Sri Tripathi, S.D.M., Faridpur. On 12 -4 -1967 he passed an order as under: I think there is no emergency to keep the property under attachment now. Without going into detail and discussing the merits of the case I order that the attachment order dated 8 -6 -1966 is withdrawn. Let Inspector Kotwali be directed to deliver possession to the persons concerned who were in possession of the property on the date of attachment. Both parties are directed to produce their entire evidence on 15 -4 -67 in support of their claims. It is this order which is impugned in this reference.;