Holding

Attachment under Section 146 ceases when a civil court issues an interim injunction or appoints a receiver, and a second revision is barred by Section 397(3) and cannot be entertained under Section 482.

Summary

The appellants and the first respondent disputed possession of a house. The respondent filed a criminal application under Section 145 of the CrPC, and the Sub‑Divisional Magistrate attached the property under Section 146, directing that the attachment continue until a competent civil court determined the parties' rights. The civil court later granted an interim injunction in favour of the appellants, after which the magistrate withdrew the attachment. The respondent sought to quash the withdrawal by invoking the High Court's inherent powers under Section 482, and the High Court entertained a second revision despite the bar in Section 397(3). The Supreme Court held that the attachment must end when a civil court makes an interim order, and that a second revision is prohibited by Section 397(3) and cannot be entertained under Section 482. Consequently, the High Court's order was set aside and the appeal was allowed. The Court also directed the appellants to amend their suit to claim a declaration of title.

Issues considered

Whether a magistrate may withdraw an attachment under Section 146 of the CrPC after a civil court has made an interim injunction or appointed a receiver.
Whether the High Court can entertain a second revision application under its inherent powers under Section 482 when Section 397(3) expressly bars a second revision by the same party.

Legislation cited

Code of Criminal Procedure, 1973s. 145, s. 146, s. 397(3), s. 482

Subjects

attachmentcriminal revisionSection 146 CrPCSection 482 CrPCSection 397(3) CrPCinterim injunctioncivil court jurisdictionmagistrate powersbreach of peace

Judgment

DHARAMPAL AND ORS . A
.:rt-. v.
SMT. RAMSHRI AND ORS.

JANUARY 7, 1993

(P.B. SAWANT AND R.M. SAHAI, JJ.)
B

Criminal Law:
-l
Criminal Procedure Code, 1973:

Section 14ir-Attachment Orde,._When comes to an end-Whether
c
Magistrate can withdraw the order when the civil cowt was seized of the
mattel"-Determination of the rights of parties-Whether to be final for cessa-
lion of attachment order and its withdrawal.
--<
Sections 397(3) and 482-Second revision application by same D
party-Whether could be enteTtained by High CouTt when the first appellate
cowt has already rejected the first revison application-Whether High CouTt
can exercise its jurisdiction when such exercise was specifically barred by the
Code.

There was a dispute between the appellants &nd the Orst respondent,
E
regarding the possession of a house. On an application filed by the
respondent under Section 145 of Criminal Procedure Code, 1973, before
the Sub Divisional Magistrate, claiming ownership of the suit property,
the Magistrate passed a preliminary order under Section 145 of the Code,
and thereafter, made an order of attachment under Section 146 directing F
that the attachment would continue till. the competent civil court deter-
·, --y· mined the rights of the parties. On a revision filed by the appellants, the
Sessions Judge granted an interim stay of Magistrate's order. Sub-
sequently, the Revision application was dismissed. The Magistrate passed
a fresh attachment order under Section 146. Once more In revision the
Sessions Judge passed an order sta,Ying the fresh order of attachmenL
G

Thereafter, the appellants filed a suit for permanent injuctlon and
I also an interim injunction. The trial court dismissed the application for
Interim Injunction. On appeal, the District Court lssned an Interim In-
junction against 1st respondent and her husband. Subsequently, the H
1
2 SUPREME COURT REPORTS (1993] 1 S.C.R.

A Criminal Revision preferred by the appellant was dismissed by the Ses·
sions Judge also on the ground that the civil suit was preferred by the
appellant. Once again, the Magistrate passed another order attaching the
property but Ibis third order of attachment was stayed by the Sessions
Judge for a period of 15 days.

B Thereafter, on an application by the appellants for withdrawal of
attachment on the· ground that there was no apprehension of a breach of
the peace, the Magistrate order withdrawal of attachment. The Revision
tiled by the ls! respondent against the Magistrate's order was dismissed
by the Sessions Judge.
c On an application under Section 482 of the Code filed by Respon·
dent No.1 for quashing the order withdrawing the attachment and for
directing the attachment to continue, the High Court held that it was not
open to the Magistrate to withdraw the attachment till the competent
court had decided the matter finally and restored the attachment. Hence
·--
D the appeal.

Allowing the appeal, this Court

HELD : 1.1. The determination by a competent court of the rights of
the parties spoken in Section 146(1) of the Criminal Procedure Code,
E 1973, 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
F 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 sub-sec·
tion (1) of Section 146 itself takes cognizance of such a situation. When a
civil court passes an order of injunction of receiver, it is the civil court
G 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, there is no longer any likelihood of the breach of the peace
with regard to the subject of dispute. Under Section 146(2) the Magistrate ~·

can withdraw the orde1· of attachment passed by him even during tl>e
P.,ndency of the dispute .in the civil court. When the civil court appoints a
'
H receiver, the order of attachment passed by the Magistrate necessarily
DHARAMPAL v. SMf. RAMSHRI 3

gives way to the order of the civil court appointing the recet-..er. It Is ouly A
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 B
subject in dispute to the receiver appointed by the civil court, and dis·
charge 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 thut the property C
continues to remaiu under attachment of the Magisterial order till
the rights of the parties are decided finally by the competent court
of law. [7G-H, 8A-C, D-F]

1,2. In the present case, the Appellate Civil Court has already passed
an order ofllliunctiou ngalnst the 1st respondent and her husband by virtue D
of which the possession continues to be with the appellents. Therefore, the
Magistrate bad not erred in withdrawing the attachment. The High Court
bas erred in holding that the order passed by the Sub-Divisional Magistrate
withdrawing attachment was without jurisdiction. [8G-H, 6E)
E
2.1. Section 397 (3) bars a Second revision application l:y 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. (60)

2.2. In the Instant case, admittedly, the 1st respondent bad preferred a F
Criminal Application to the Sessions Court against the order passed by the
Magistrate, withdrawing the attachment. The Sessions Judge bad dismissed
the said application. Hence, the High Court hod clearly erred in entertainillj!
the second revision at the instance oflstrespondent. [6C,E)

3. The Magistrate had committed an error in passing the sub- G
sequent orders of attachmeut when the first attachment was never finally
vacated and had revived the moment the revision appllcatiou filed against
it was dismissed by the Sessions Judge. None or the parties, including the
Sessions Judge, realised this error on the part or the Magistrate. The
Sessions Judge had also committed a patent mistake in entertaining H
·,
4 SUPREME COURT REPORTS [1993] 1 S.C.R.
----
A revision application against the fresh orders of attachment and granting
interim stays when hr had dismissed revision application against the
order of attachment earlier. [6A-B] '"i---
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
667of1980.
B
From the Jlidgment and Order dated 31.7.1980 of the Allahabad
High Court in Cr!. Misc. Appln. No. 5296 of 1979.

M. V. Goswami for the Appellants.

C Vishnu Mathur, A.S. Pundir and R.C. Verma for the Respondents.

The Judgment of the Court was delivered by

SAWANT, J. The admitted facts in the present case are as follows.
The suit property consists of house No. 336 of village Khonda, District
D Mathura. The dispute with regard to the possession of the property arose y-
between the appellants and the respondent-Ramshri. She filed an applica-
tion under Section 145 of Criminal Procedure Code [Code] before the Sub
Divisional Magistrate, Sadabad in which she claimed ownership of the suit
property. On 31st May, 1976, the learned Magistrate passed a·preliminary
order under Section 145 of the Code and thereafter on 22nd April, 1977
E made an order of attachment under Section 146 directing that the attach-
ment would continue till the competent civil court determined the rights
of the parties with regard to the said property. Against this order, a
Revision being Cr. Revision No. 27/1977 was filed by the appellants before
the Sessions Judge who by his interim order dated 23rd April, 1977 stayed
F operation of the learned Magistrate's order. However, before the interim
stay order could be communicated, the attachment had already been
effected. The learned Sessions Judge, therefore, again, by another interim
order dated 26th April, 1977 directed the police to restore the possession
of lhe property to the appellants from whom allegedly the possession of
G the property was taken. The_ possession was restored to the appellants on
28th April, 1977. The said Revision application was dismissed on 18th
August, 1977. Though, on account of the dismissal of the Revision, the
order of attachment passed by the Magistrate revived, the learned
Magistrate passed a fresh order dated 31st January, 1978 under Section
146 attaching the property in dispute. Against the said order, once more a
H revision being Cr. R.No. 19/1978 was preferred by the appellants to the
DHARAMPAL v. SMT. RAMSHRI [SAWANT, J.) 5

Sessions Judge who on· 2nd February, 1978 passed an order staying the A
fresh order of attachment passed by the Magistrate.

2. Thereafter, the appellants filed a suit for permanent injunction
against ihe 1st Respondent and her husband, and in that claimed an interim
injunction against them. The trial court dismissed the application for
interim injunction. Against the order of dismissal, the appellant filed an B
appeal to the District Court, and the appellate court by its order dated
18th May, 1978, allowed the appeal and issued an interim injunction against
1st respondent and her husband. Thereafter Cr. Revision No. 19/1978
preferred by the appellant before the Sessions Judge was dismissed on 15th
June, 1978 also on the ground that the civil suit was preferred by the C
Appellant. Again, although the order of attachment stood revived and the
order of interim injunction by the Civil Court still continued, the Magistrate
on 25th July, 1978 passed another order attaching the property. Ag.linst
this third order of attachment passed by the Magistrate, a revision was filed
by the Appellants before the Sessions Judge and the Sessions Judge by bis D
order dated 26th July, 1978 stayed the order of attachment issued on 25th
July, 1978, upto 10th August, 1978.

On 26th July, 1978, the appellant filed an application before the
Magistrate for withdrawal of attachment on the ground that there was no
apprehension of a breach of the peace. On this application, on 17th E
October 1978, the Magistrate ordered withdrawal of attachment. Against
this order, the 1st Respondent filed revision being Cr. R.No. 1sons before
the Sessions Judge who dismissed the same on 14th May, 1979.

Respondrnt No. 1 thereafter, preferred an application under Section F
482 of the Code before the High Court for quashing the order withdrawing
the attachment and directing the attachment to continue. The High Court
by the impugned order took the view that it was not open to the learned
Magistrate to withdraw the attachment till the. competent Court had
decided the matter finally and restored the attachment.
G
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. H
....
6 SUPREME COURT REPORTS [1993) 1 S.C.R.

A 4. There is no doubt that the learned Magistrate had committed an '-<,.
error in passing the subsequent orders of attachment when the first attach-
ment 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
B 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
c entertained a second revision application at the instance of the 1st respon-
dent. Admittedly the 1st respondent had preferred a Criminal Application
being Cr. R.No. 1son8 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
D
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.
~-
E
5. However, since the High Court has also proceeded to interpret
the provisions of Sections 145 and 146 of the Cod.e, it has become necessary
to set things right on that score as well.

F 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 "r-
(sic.)] withdrawing attachment, was without jurisdiction. The provisions of
Section 146 of the Code are clear in this respect. The Section reads as
'
follows:

G '146. Power to attach subject of dispute and to appoint receiver.
- ( 1) If the Magistrate at any time after making the order under
r -
sub-section ( 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
H unable to satisfy himself as to which of them was then in such
DHARAMPAL v. SMT. RAMSHRI (SAWANT, J.] 7

possession of the subject of dispute, he may attach the subject A
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 B
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 Telation to such subject of dispute has
been appointed by any Civil Court, make such arrangements as C
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 (5 of 1908):

Provided that in the event of a receiver being subsequently D
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 ap- E
pointed 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.'
F
It is obvious from sub-section (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 G
a final determination. The determination may be even tentative at the
interim stage when the competent Court passes an order of interim injunc-
tion or appoints a receiver in respect of the subject-matter of the dispute
pending the fmal 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 H
8 SUPREME COURT REPORTS [1993] 1 S.C.R.

A between the order passed by the civil court and the order of attachment
passed by the Magistrale. The proviso to sub-section (1) of Section 146
itself takes cognizance of such a situation when it slates that 'Magistrate
may withdraw the attachment al any lime if he is satisfied that there is no
longer any likelihood of ~ny breach of peace with regard lo the subject of
B dispute". When a civil Court passes an order of injunction or 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.
c
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 sub-section (2) of Section 146.
When the civil Court appoints a receiver, the order of attachment passed
D 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 lo
E hand over the possession of the subject in dispute to thr. 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
F 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
G 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 withdraw-
H ing the attachment by his order dated 17th October, 1978.
DHARAMPAL v. SMT. RAMSHRI (SAWANT, J.] 9

'-,r 6. For both these reasons, the appeal is allowed and the impugned A
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.

N.P.V. Appeal allowed.

c.