There pass a fresh order of attachment

There are three circumstances when the Magistrate can order attachment of property in dispute under Section 146. They are—(1) if he considers the case is one of emergency; (2) if he decides that none of the parties was in possession, and (3) if he cannot decide as to which of the parties was in actual possession.

The Magistrate may withdraw the order where he is satisfied that there is no longer any possibility of breach of peace. Magistrate’s order under Section 146 remains in force until the rights of parties are finally decided by the competent civil Court.

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The section also empowers the Magistrate to appoint a Receiver of the property. But if the Civil Court appoints a receiver subsequently, the Magistrate shall withdraw his Receiver and order him to hand over the disputed property to the Court’s Receiver.

The section does not contemplate any prior notice or opportunity of hearing to the parties before an order under Section 146 is made by the Magistrate, obviously because it may involve delay in handling the emergent situation of breach of peace.

The order of attachment made under Section 146 is binding not only on the parties to proceedings but every person who has claimed any right to possession in respect of property under attachment.

The jurisdiction of the Magistrate does not come to an end as soon as attachment of property is ordered on the ground of emergency. He must conclude the proceedings initiated under Section 145 (1) by disposing of the case on merits.

The Rajasthan High Court in Budhi v. Gyana, has observed that there is no bar for the sub-divisional Magistrate to pass a fresh order of attachment if his earlier order of attachment had been withdrawn under some circumstances.

The Magistrate is empowered to pass a composite order of attachment of disputed property under Section 146 (1) while passing a preliminary order under Section 145 (1). But the order made under Section 145 (1) must precede the one made under Section 146 (1) and both the orders should be separately made specifying the existence of conditions under which they have been drawn.

In Dharampal v. Ramshri, the disputed house was attached under Section 146 and subsequently a civil suit was filed with regard to same property and a temporary injunction was issued. The Supreme Court in this case ruled that the moment a Civil Court issues an interim injunction or appoints a Receiver of the disputed property pending the final decision; the order of attachment passed under Section 146 comes to an end as likelihood of breach of peace no longer exists.

The High Court of Jharkhand in Prahalad Rain v. Rajendra Ram, held that in a dispute regarding immovable property, initiation of proceedings under Section 145 and attachment of land under Section 146 after disposal of proceedings under Section 144 regarding the same land between the same parties was not proper.

The powers conferred on the Magistrate under Sections 145 and 146 if exercised improperly, could be corrected by way of revision to the Sessions Court or by invoking the inherent power of the concerned High Court under Section 482 Cr PC.

The Supreme Court in Chandra Shekhar Singh v. Siya Ram Singh held that where on a reference by a Magistrate, the Civil Court gave its finding regarding possession of disputed property; the same cannot be challenged by way of appeal, review or revision in a higher Court.

The High Court of Kerala in Viyanuna v. Padmanabhan v. Vasudevan and others held that under Sections 145 and 146 of the Code, where dispute relates to possession, the Magistrate or the Court of Session has no power or authority to refer the dispute regarding the possession of property to a Civil Court for a finding on the question of possession.