1993 PLP 2393 (SCMR)

3. On these facts, two questions arise in this appeal viz. whether the High Court could entertain the second revision application in exercise of its inherent powers under section 482 of the Code and whether the interpretation placed by the High Court on the provisions of sections 145 and 146 of the Code is correct.

4. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R. No.180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.

5. However, since the High Court has also proceeded to interpret the provisions of sections 145 and 146 of the Code, it has become necessary to set things right on that score as well. We are afraid that the High Court has erred in holding that the order passed by the Sub‑Divisional Magistrate on 17th October, 1978 (17‑9‑78 (sic)) withdrawing attachment, was without jurisdiction. The provisions of section 146 of the Code are clear in this respect. The section reads as follows: "

146. Power to attach subject of dispute and to appoint receiver.‑‑(1) If the Magistrate at any time after making the order tinder subsection (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit appoint a receiver thereof, who shall have subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (V of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate‑‑‑ (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just." It is obvious from subsection (1) of section 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof". The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject‑matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to subsection (1) of section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute." When a Civil Court passes an order of injunction or appoints a receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute. The fact that the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the Civil Court is made further clear by the provisions of subsection (2) of section

146. When the Civil Court appoints a receiver, the order of attachment passed by the Magistrate necessarily gives way to the order of the Civil Court appointing the receiver. It is only when the Civil Court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver himself. However, even when such a receiver is appointed and the Civil Court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the Civil Court and discharge the receiver appointed by him. He has also to pass such other incidental or consequential orders as he thinks just. Such order may include an order of withdrawal of the attachment in view of the seizure of the matter by the Civil Court and the consequent want of apprehension of breach of the peace. It is, therefore, not correct to say as held by the High Court that the property continues to remain under attachment of the Magisterial order till the rights of the parties are decided finally by the competent Court of law. That appears to be the purport of the High Court's order since in the present case the appellate Civil Court has already passed an order of injunction against the 1st respondent and her husband by virtue of which the possession continues to be with the appellants. In this view of the matter, the Magistrate had not erred in withdrawing the attachment by his order dated 17th October, 1978.

6. For both these reasons, the appeal is allowed and the impugned order of the High Court is set aside. It is necessary to add that the suit as filed by the appellants is only for a permanent injunction. The appellants must amend the plaint for claiming also the declaration of their title to the property in question. M.BA/432/FC Appeal allowed.