P L D 1967 Dacca 536 (PLP)

In this case a Rule was issued on the Deputy Commissioner of Rajshahi to show cause why the order made by Mr. B. D. Khan, Magistrate 1st Class, Natore on 11‑2‑64, vacating the order of attachment and asking the petitioner to deliver the attached property to the opposite‑party should not be set aside. This revisional application arises in the following circum stances: A criminal case was started against one Sohanlal Agarwalla and his wife under section 5 of the Pakistan Entry (Control) Act, 1952, in the Court of the Sub‑Divisional Magistrate, Natore. The accused Sohanlal absconded and his properties were attached by the Court and the petitioner was appointed a Receiver of the properties of the said absconding accused on 24‑9‑

61. On 11‑12‑61, the opposite‑party Ismail Hossain Sarkar filed a petition objecting to the said order of attachment on the ground that the properties in question belonged to him. He, however, did not pursue the objection which was eventually filed. He obtained an ex parte decree in a Civil suit instituted by him declaring that the attached property belonged to him. That decree was obtained on 1‑12‑

61. The objection was directed to be filed by the Magistrate without passing any order on 31‑3‑

62. The receiver, the present petitioner, obtained the permission of the Court and instituted a suit for declaring that the‑ex parte decree was void. The suit was filed on 19‑6‑

62. Thereafter the opposite‑party filed an application for reviving the petition of objection and for hearing the same on merits. That petition was also rejected. The opposite‑party then moved the Sessions Judge who refused to interfere by an order made on 25‑1‑62 on the ground that "It appears that the claimant any how got an ex parte decree from the Court declaring his right to the property in question: He has absolutely no grievance because 'the order of attachment is subject to the result of the suit'." Above observation indicates that the refusal was based on the ground that even without interference, the opposite‑party would get the desired result. The learned Sessions Judge took the view that the law made the attachment subject to a decree obtained in a Civil suit, although it may be an ex parte one. Thereafter the Magistrate made the impugned order on 11‑2‑64, holding that, in view of the decree of a Civil Court that the property in question does not belong to the absconding accused the property should be released from the attachment. The learned Magistrate observed: "I am inclined to hold in pursuance of the order of appellate Court that the land under attachment belongs to Ismail Hussain of Batikamari P. S. Bagatipara by virtue of the aforesaid decree and hence the attachment order is not binding upon the said petitioner. Hence it is ordered that the property under attach ment be vacated forthwith and the receiver Haji Meher Ali be asked to deliver the attached property measuring 7‑27 acre of Khatian No. 52/3 at present bearing No. 414 of Mauza Batikamari P. S. Bagatipara to the owner Ismail Hossain Sarkar . . . " As against the said order, the learned Sessions Judge of Rajshahi was moved but he refused to refer the matter to this Court holding that "the property under attachment has not been sold or otherwise disposed of under section 88 (7) of Cr. P. Code. Hence the decree of the Civil Court is binding". Mr. Mohosen Ali, learned Advocate for the petitioner submits that the impugned order dated 11‑2‑64 is virtually a review of the order made by the same Court on 31‑3‑62, when it filed the objection petition without making the order as prayed for. I shall presently indicate as to why this point does not appear to be of substance. On 31‑3‑62, the Court ordered that the petition should be filed as the opposite‑party who submitted the petition did not appear. The impugned order has been made by the Magistrate on 11‑2‑64 after perusal of the observation to the effect that the decree of the Civil Court was binding on him. It must be remembered that the Magistrate made the order attachment and appointed a Receiver. Whenever it appears to the Magistrate that the requirement of law is to release the property from attachment, he has to do so. The Court which appoints the Receiver can also discharge him if it is necessary. In this case, the Magistrate felt that there was a decree of the Civil Court which required the making of the order which he did. This order, therefore, cannot be called to be a review of the order made on 1‑12‑

61. It was an order made by a Court in seisin of the case. Mr. Mohosen Ali, who has ably argued his client, submits that the Magistrate made the earlier order also on the same facts. That may be so. But the learned Magistrate at that time did not properly appreciate the position in law. The Magistrate appointed the Receiver. The property in possession of the Receiver is to be deemed to be in possession of the Court. The Receiver is merely an Officer of the Court. If at any time the Magistrate feels, on a proper appreciation of the law, that he is to make an order, he is entitled to do so. That would not be in the nature of reviewing an earlier order as contended. That will be rather in the nature of an administrative order. Next point urged by Mr. Mohosen Ali is that the Magistrate having once permitted the Receiver to file a suit for declaring void a decree obtained ex parte by the opposite‑party ought not to have released the property from attachment and should have waited for the decision of the Civil Court. Mr. Mottalib, learned counsel for the opposite‑party has also forcefully argued that the Magistrate had no other alter native than to make the order in question, as by operation of law, the order of attachment is subject to the result of a suit which may be instituted by any person whose claim has been rejected. His contention is that the order made on 31‑3‑62, when the Magistrate filed an objection petition, is in effect an order disallowing the same. Therefore, the suit in question is a suit instituted by a person whose objection has been disallowed. Mr. Mottalib further submits that it is not necessary that the opposite‑party should take steps under section 88 (of the Criminal Procedure Code, 1898). He can file a suit indepen dently of taking any of the steps enumerated under section 88 of the Code and a decree of the Civil Court until it is set aside is binding on the Court and the Magistrate could not, under the law continue the order of attachment. In support of his contention Mr. Mottalib has placed his reliance on the case of Secretary of State v. Ahalyabai Narayan Kulkarni (A I R 1938 Bom. 321). In that case the learned Judge observed as follows: "The provision in subsection (7), that the property shall not be sold until the claim preferred under subsection (6‑A) has been disposed of, means that the sale is to be subject to the rights of any person interested if such rights are established by a decree. If so, why should such rights be not enforceable even if they are obtained by a decree without going before any Magistrate under subsection (6‑A), so long as the property has not been sold by Government? I, therefore agree with the lower Courts in holding that the suit is maintainable in spite of the fact that the plaintiffs did not go to the Magistrate under subsection (6‑A), and that the decree would be binding on the Government." This decision is an authority for the proposition that even independently of subsection (6‑D), a person can claim that a decree obtained by him is binding, if he gets a declaration to the effect that the property belonged to him and not to the absconding accused. To the same effect is the decision 'of our High Court in the case of Umesh Chandra Bhadra v. Shaikh Somed Ali and others (P L D 1959 Dacca 448). In that case, the learned Judge observed as follows:‑ "I do not find any bar in section 88 of the Code of Criminal Procedure and it cannot be said that in view of any provision of section 88, the suit is not maintainable. What was sold is the right, title and interest of Parimal, the abs conder. I do not understand how the right, title and interest of the plaintiff was affected by it and how their suit for injunction restraining the defendants from interfering with possession of the plaintiff is barred under the provisions of section 88." I respectfully agree with the views expressed above. The position, therefore, is that the decree of the Civil Court was binding on the Magistrate and it cannot, therefore, be said that the impugned order is illegal. Mr. Mottalib has raised the question of maintainability of this petition on the ground that the Receiver did not obtain the permission of the Court in moving against the order of releasing the property of attachment. The contention of Mr. Mottalib is also of substance. The petitioner's property was attached, because, the accused was absconding. Proceeding was initiated by the State. It was open to the State to move against the order vacating the attachment. The receiver is an officer of the Court. He is to take permission of the Court in taking any step in the proceeding. He did not obtain any such permission. The petition moved by him in his capacity as receiver is therefore unauthorised. If, however, it would be found that on merits the impugned order is liable to be set aside, I would have inter fered with the same since the matter came to my notice. But the order of the Magistrate is such that there should be no interfer ence and I refrain from doing so. It is true, if the petitioner would have been removed, he could have moved the superior Court against the order of removal. But here it is not the case of removal of the petitioner. Here the property itself has been released from the attachment. Therefore, the Receiver who is an officer of the Court, is not a person affected by that order. In this connection, Mr. Mottalib has also brought to my notice that the Receiver, in case of the petitions filed by him, has himself stated that he was taking steps for recording the name of the Sohanlal Agarwala in the record‑of‑rights. That being so, it shows that he was person interested in the property, even if as an agent of the absconding accused. Mohosen Ali has submitted that in some cases plaintiff is appointed as Receiver. It is further urged that if some special circumstances require it, such a person may be appointed. No such case can be matte out in the case before me. It appears that while appointing him as a Receiver the Court failed to notice that he was an interested person. Mr. Mohosen Ali has lastly urged that the allegation against the opposite‑party is that he has made fraudulent documents of title and obtained a decree of the Civil Court in respect of his title to the land. It is open to the State or a person affected thereby to take an appropriate step against the opposite‑party. I am only concerned to find out that if there should be an inter ference with the impugned order. I have sufficiently indicated that no such interference is called for. In the result, the rule is discharged. In this case a stay order was obtained at a time when the petitioner had already made over possession and it was not men tioned at all. If it would have been brought to my notice, I would not have issued the order of stay. The order of stay is accordingly vacated. Mr. A. H. Amin, learned Advocate offers regrets for the same and deplores the situation. K. B. A. Rule discharged.