CHAMPABATI DIBYA AND 2 ORS. Vs. STATE AND 7 ORS.

JUDGEMENT

(1.) THIS is a petition, to revise a final order under Section 145 Code of Criminal Procedure passed by a 1st Class Magistrate of Puri on 9 -1 -1959 declaring possession of the disputed property in favour of the first party (Opp. Party).

(2.) THE main contention on behalf of the Petitioners is that a regular partition suit in respect of the property which is the subject matter of the proceedings under Section 145 Code of Criminal Procedure and some other property was filed in the Court of the Subordinate Judge, Puri, in 1957 (T.S. 42/57) between the same parties and is now pending in that Court. Mr. M.S. Rao on behalf of the Petitioners urged that during the pendency of the civil suit the learned Magistrate had no jurisdiction to start a separate proceeding under Section 145 Code of Criminal Procedure in respect of any of the items of property covered by the civil litigation. There is considerable force in this contention. The primary object of a proceeding under Section 145 Code of Criminal Procedure is to make some interim arrangement for the management of the disputed property until the rights of the rival claimants are adjudicated by the Civil Court. Once the parties have moved the Civil Court for adjudication of their rights there is, no point in starting a proceeding under Section 145 Code of Criminal Procedure If either party wants interim relief during the pendency of the civil suit, the Civil Court has itself jurisdiction to pass interlocutory orders either under Order 39 or Order 40 of the Code of Civil Procedure. Mr. Sinha on behalf of the opposite party informed that the Petitioners applied to the Civil Court for appointment of a Receiver but that application was dismissed. It would, however, be open to the opposite party either to get himself appointed as Receiver till the disposal of the partition suit or to request the Civil Court to pass appropriate interim orders for protection of the property, under Order 39 Rule 7 or any other provision of the Code of Civil Procedure. But the initiation of a proceeding under Section 145 Code of Criminal Procedure after the commencement of the Civil litigation is clearly misconceived.

(3.) MR . Sinha however submitted that there are standing crops on the disputed land and as it may take some time to obtain an interlocutory order from the Subordinate Judge, Puri, there may be an apprehension of trouble from the other side till such an order is obtained. The learned Magistrate may take such interim action, as he may deem advisable, till the parties apply to the Subordinate Judge, Puri and obtain interlocutory orders for the preservation and management of the disputed property and the standing crops. Revision allowed.