S.N. Deedwania, J. - (1.) This revision is preferred against the order, dated September 30, 1980 of learned City Magistrate, Jodhpur, whereby, the ad inter in order of attachment of the disputed property passed on 16-8-1980 was not confirmed.
(2.) Briefly stated the facts are these. Petitioner Abdul Aziz and either moved an application under section 145, Cr. P.C. along with an application under section 146 (1), Cr. P.C. in the court of City Magistrate, Jodhpur. The allegations in the application under section 145 Cr. P.C. were these. There is a society named Darul Ulam Aleh Hadis (hereinafter referred to as the Society) in Jodhpur. In the name of society, the disputed properly was purchased on 16-9-74. The society started some construction over the land. Thereafter, the petitioners were given a special power of attorney to make and complete the constructions over this land and they were also handed over the possession. They were also given the power to manage the property and recover rents of the shops, in which, they were to keep the tenants. The shops had been completely constructed and given on rent, which was recovered by the petitioner. However, the construction is not complete. On 8-8-80, in the day at 2 p.m., the non-petitioner along with some other persons tried to take forcible possession of the property. The petitioners, therefore, approached the police. It is further alleged that the non-petitioners are trying to deprive the petitioners of the possession of the property. Thus, a dispute likely to cause breach of peace has arisen in respect to this property. In the application under section 146, Cr. P.C. it is alleged that an emergency has arisen and, therefore, property be attached and receive be appointed. On this application, on 16-8-80 learned City Magistrate drew a preliminary order under section 145 (1), Cr. P.C. and further passed an order under section 146 (1),Cr. P.C. in the following terms:- ...[VERNACULAR TEXT OMITTED]... It further appears that the non-petitioners preferred Revision petition No. 273 of 1980 Abdul Shakoor and others v. Abdul Shakoor and others , which was dismissed with the following observations. "A perusal of the order of the learned City Magistrate shows that he has attached the subject of dispute in the proceedings under section 145, Cr. P.C. treating the case of emergency. But at the same time, he has observed that it is only an interim measure and after hearing both the parties he will pass final orders as to whether any case for attachment of the subject of dispute is made out or not. The petitioners, therefore, should appear before the learned City Magistrate and impress upon him, the arguments, which he wants to advance here and the learned City Magistrate, it is expected will pass final orders as observed by him after hearing the parties the non-petitioner opposed the application under section 145, Cr. P.C. and under section 146, Cr. P.C. it was denied by the non-petitioner that there was any apprehension of breach of peace. It was disputed that the property was in possession of the petitioners The possession was alleged to be of the society and it was further stated that the school was run in the disputed property by the society. The allegations regarding the emergency were also denied. It is also stated that by the resolution, dated May 5, 1978, the special power of attorney in favour of the petitioners has been withdrawn by the society and they have no right to interfere with the property. The learned City Magistrate, after hearing the parties observed that there was no grave emergency and in this view did not confirm the order of attachment issued ex parte on 16-8-80."
(3.) I have heard the learned counsel for the parties and perused the record of the case carefully.;