1977 P Cr (PLP)

S. 439-Stay order of High Court, requiring status quo in force

Appointment of Receiver by Magisterial Court during subsistence of such order, held, not justified and set aside-Criminal Procedure Code (V of 1898), S.

145. Abid Hassan Minto for Petitioner. Rafiq Ahmad Malik for Respondents. Date of hearing: 27th January 1977. A dispute arose between Muhammad Nazir Ahmad petitioner Manager, Kohistan Bus Service, Lyallpur with M. Hanif son of M. Nazir and others, resident of 158/0, New Civil Lines, Lyallpur, over Property No. P-30, Block No. 10, New Civil Lines, Lyallpur, comprising Khasra No. 2058/1. This led to initiating of proceedings under section

145. Cr. P. C. whereby Mr. Ijaz Ahmad Cheema, Magistrate Section

30. Lyallpur vide his order dated 15-9-1907 directed that the property in dispute be attached. This order was challenged before this Court vide Criminal Revision No. 1343 of 1967. In respect of the other portion of the property in dispute, a similar order was passed by Mr. Ijaz Ahmad Cheema, on the same day, which was also challenged in this Court vide Criminal Revision No. 1344 of 1967 During the pendency of the above revision petitions, Mr. Ziaullah Khan Niazi, Magistrate First Class by his order dated 27th May, 1972, appointed Naib-Tehsildar (Revenue), Lyallpur as a Receiver of the disputed property. This matter regarding the appointment of Receiver tans been referred to this Court by Sardar Muhammad Amir Akbar Khan, Sessions Judge, Lyallpur, under section 438, Cr. P. C. vide has order dated 25-6-1973, with the recommendation that the order of appointment of Receiver was ab initio and void as it militated against the order of this Court whereby a status quo order was granted. I will dispose of both, Criminal Revision No. 1343/67, filed by Muhammad Nazir Ahmad Petitioner against the order of attachment of the property and Criminal Revision No.580/73, the reference made by the Sessions Judge, by a single judgment.

2. I have beard the learned counsel from both sides and have perused the record of this case carefully with their assistance. It has been revealed that the Writ Petition (No. 1240/R-69) regarding the entitlement of the parties pending before this Court, has since been decided and the case Las been remanded for fresh decision on merits, to the Settlement Commissioner, Lyallpur. It has also been conveyed to this Court that the said case is now ripe for decision in the near future. Keeping this information in view as well as the merits of the case, I am of the considered opinion that the proceedings under section 145, Cr. P. C. taken by the learned trial Magistrate in the year 1967, cannot be allowed to remain in operation as by no stretch of imagination, it can be said that emergency can remain in existence so long. To accept this concept would be the negation of the concept itself. I, therefore, accept Criminal Revision No. 1343 of 1967 and set side the order of attachment dated 15th September 1967, as being without any merits, at this time.

3. As far as the question of reference by the learned Sessions Judge, is concerned, I find a lot of force in his recommendation. In the presence of a stay order of this Court, the learned Magistrate, by no measure, was justified to appoint a Receiver. Therefore, the reference is also accepted and his order dated 27th May 1972, is set aside.

4. While parting with this case I will direct that the parties will not take any measures to deal with this property in any manner whatsoever till the matter is decided by the Settlement Commissioner. In case any emergency occurs, the parties are at liberty to take proceedings in accordance with law. To clarify the earlier observation (deal with this property in any manner) I will make it clear that the status quo will be maintained till then. Order accordingly.