Shanmugham and Another vs The Inspector of Police, (Law and Order) Gobichettipalayam and Six Others

R. Balasubramanian, J.—The Revision Petitioners arc ''A'' Party counter petitioners 1 and 2 in M.C. No.9 of 1990 on the file of the

Executive First Class Magistrate cum Revenue Divisional Officer, Gobichettipalayam.

Respondent 1 is the petitioner before the Executive Magistrate. Respondents 2 and 3 arc ''B'' party counter petitioners, and respondents 4 to 7

are the other ''A'' party counter petitioners 3 to 6 in that proceedings. On a report from the first respondent in this revision, the learned Executive

Magistrate took up the matter and proceeded to hear the parties under Sections 145 of the Cr. P.C. Both the counter petitioners appeared before

the Executive Magistrate and each put forward their own version regarding possession. For the disposal of the present revision, it is enough if I

refer to just one or two facts reflected in the respective versions

This revision can be disposed of on a short point: It is not in dispute that O.S. No. 151 of 1990 on the file of the District Munsif,

Gobichettipalayam is a suit instituted by the ''A"" party against the B'' party. An interim injunction was prayed for pending the suit. That was

rejected. Thereafter. ''A'' party filed an appeal hearing No. C.M.A. No. 13 of l990 before the Appellate court. The Appellate Court namely, the

Sub-Judge, Gobichettipalayam, holding that possession of the property in question was with the A party, allowed the appeal and granted injunction

pending the suit by judgment dated 5-10-1990. According to the learned counsel for the revision petitioner, this order of the Civil Court which

protected ''A'' party''s possession, would come in the way of the Executive Magistrate exercising his power u/s 145 of the Cr. P.C. and give a

finding contrary.

Per contra: 1 heard Mr. V.R. Balasubrama-niam, Government Advocate on the criminal side for the first respondent and Mr. T.

Murugamanickam, appearing for respondents 2 and 3. The pendency of the civil dispute and the order of injunction granted by the Appellate

Court as referred to above is not disputed even in the versions filed before the Executive Magistrate by either ""of the parties. The learned counsel

for the revision petitioner brought to my notice two judgments of the Supreme Court, namely, Ram Sumer Puri Mahant Vs. State of U.P. and

Others, and Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, , in support of his argument that the Executive Magistrate has

to respect the Civil Court verdict and the Executive Magistrate cannot conduct a paralled proceeding when the Civil Court has already seized of

the matter.

The learned Executive Magistrate after considering the rival contentions of the parties as well as after referring to the judgments of the Supreme

Court reported in Ram Sumer Puri Mahant Vs. State of U.P. and Others, proceeded on the assumption that unless the civil dispute itself comes to

an end, any interim order passed pending suit cannot be of any help in testing the factum of possession and on this basis gave a finding that ''B''

party is in possession of the property concerned. This finding of the learned Executive Magistrate is directly opposed to the principles laid down by

the two judgments referred to above. The learned Magistrate''s finding that the ''B'' party is in possession of the property in question is running

diametrically opposite to the finding of possession rendered by judgment dated 5-10- 1990 in C.M.A No. 13 of 1990 on the file of the Sub-

Court, Gobichettipalayam. It is pertinent to note here that"" the Executive Magistrate passed his order on 6-12-1991 which is almost one year after

the order in C.M.A. No. 13 of 1990 referred to above. The statement of the learned Executive Magistrate that as both the parties are asserting

possession with themselves which is likely to result in breach of peace, it is his bounden duly to see that such a breach of peace do not occur may

be right. But. however the ultimate order passed by him on possession cannot go against the finding rendered by the Civil Court. The best thing the

Executive Magistrate should have done on the facts of this case is to respect the finding rendered by the Civil Court in C.M.A. No. 13 of 1990

and protect ''A'' party''s possession and not that of ''B"" party''s.

Under these circumstances 1 am of the clear opinion that the Executive Magistrate had completely erred in passing the impugned order.

Therefore, it has to be necessarily set aside. The learned counsel Mr. T. Murugamanickem, appearing for respondents 2 & 3 and the learned

Government Advocate appearing for the first respondent are not in a position to canvass the contrary.

Under these circumstances, the revision is allowed and the impugned order dated 6-2-1991 in M.C No. 9 of 1990 on the file of the Executive

First Class Magistrate and the Revenue Divisional Officer, Gobichettipalayam is set aside. It is needless to state that any order passed by the

Executive Magistrate u/s 145 of the Cr. P.C. is always subject to the final decision of a competent civil court on the very same question.