BADRI PRAKASH SONIversusPRAHALAD SONI AND ORS.

A                          BADRI PRAKASH SONI
                                   v.
                         PRAHALAD SONI AND·;ORS.

                               SEPTEMBER 5, 1994
                                                                                     ~·

B            [K. RAMASWAMY AND N. VENKATACHAL\ JJ.)

            Cod,e .of Criminal Procedure, 1973: S.145(2)-l'ossession of proper-
     ty-Executive Magistrate unable to decide--Passing order attaching properties
    .and directing parties to approac.h the Civil Court to establish their
c    rights-Validity of-Directions issued to Senior Sub-Judge before whom ap-
     peal is pending in the matter-Smooth running of the factories fonning part
     of the property-Directions issued.

          The possession of certai~ property was in dispute and proceedings
    Were initiated under S. 145(2) Cr. P.C. Unable to decide as to who was in         c:''
D   possession of the disputed property, the Executive Milgistrate passed an
    order attaching the properties and directing the parties to go to the Civil
    Court to establish their rights. When the said order was passed, a civil
    suit was pending before the Sub-Judge. Therefore, the High Court held
    that the Magistrate should have awaited the decision in the suit. The
    present appeal is against the said order of the High Court. The operation
E   of the High Court's order was stayed by this _Court.

         During the tendency of the appeal, the sub-Judge dismissed the suit
    and the appeal. filed by the respondent is pending before the Senior
    Sub-Judge.
F
          Disposing of the appeal, this Court

          HELD : 1. In view of the fact that the Magistrate has stated that he
    was not in a position to decide as to which of the contesting parties are .
    in possession of the disputed property, the _dispute shall ht; decided by th~.
G   Senior Sub-judge pending in appeal before him. [103·C]

          2. In the interest of the utilisation of the Cork Spliting Machine(Ger·      ~
    man Make) and smooth running of the factories during the pendency of
    the appeal, it is directed that: (103-D]

H         (a) The respondent is at liberty to continue to utilise the machinery
                                         100
                      B.P. SONI v. PRAHAIAD SONI                         101

in disputed property and run the factory. (103-D]     -                         A
      t'b) Mr. Rakesh Kumar, Advocate practising in this Court is ap·
pointed as an Advocate Commissioner. He should after giving a notice to
the counsel for the parties, make immediate inspection of the factory. The
Executive Magistrate is directed to open the seals put on the disputed
property. The Advocate-Commissioner with the Assistance of the expert           B
Engineer or Valuer shall assess the condition of the machinery and also
its value. He should also make an inventory of the machinery existing
outside the _factory. He would submit a report in that behalf to the Senior
Sub-Judge. He should also take the signature of counsel for the parties
before submitting the report to the Senior Subordinate Judge. (103-E-F]         C
      (c) A sum of Rs. 10,000 is faxed initially as Commissioner's fees
subject io his ~laiming any additional amount as his fees and of the expert
Engineer or Valuer, which will be determined by the Senior Sub Judge after
submission of his report. (103-G]
                                                                                D
      (d) As soon as the report is submitted by him, the Senior Sub Judge
should direct the Executive Magistrate to lift the attachment made in
respect of the disputed property and permit the respondent to run the
factory. (103-H; 104-A]
                                                                                E
       (e) The respondent shall not remove the machinery within the dis-
puted property as well as the machinery kept outside the factory. From the
date on which the respondent starts running the factory, he shall for every
working day deposit to the credit of the appellant a sum of Rs. 20,000. The
Senior Subordinate Judge is directed to dispose of the appeal as ex-
peditiously as possible within a period of six weeks from the date of receipt   F
of this order. If the respondent before the Senior Subordinate Judge suc·
ceeding in his contention and on the Court finding that he is the owner,
then he will be entitled to withdraw the amount deposited by the respondent
herein. (104-A·B·CJ

      (f) In the event of the findings going against the respondent herein G
and if any damage to the machinery is caused contrary to noted conditions
by the Commissioner, after taking delivery of the possession the appellant
herein is entitled to claim damages caused to the machinery. The Commis-
sioner shall give his report within a week to the Senior Subordinate Judge.
                                                                   [104-D] H
    102                  SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A         (g) With the assistance of the parties, it is open to the Commissioner
    to take photographs of the existing machinery and put identification
    marks to the machinery so taken in the presence of the parties with their
    signatures. (104-E]

         (h) The parties shall bear the costs of the Commissioner as well as
B   an expert or valuer in equal proportion. (104-F]

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    613of1994.

C         From the Judgment·and Order dated 3.6.94 of the Delhi High Court
    in CrL W.P. No. 438 of 1994.

          M.L. Verma and S.B. Upadhyay for the Appellant. ·

         G.L. Sangbi, A.P. Gambhir, Maninder Singh and Vivek Gambhir for
D   the Respondents.

          The following Order of the Court was delivered :

          Leave granted. Heard the counsel on both sides.

E         We do not propose to go into the entire controversy.-Suffice to state
    that the Executive Magistrate exercising the power under Sec. 145 sub-s.
    (2) of the Criminal Procedure Code was unable to decide as to who was
    in possession of the disputed premises on the date of initiation of the
    proceedings under sub-s. (1) of Section 145, Therefore, he passed an order
    on may 1994 attaching properties and directing the parties to go to the Civil
F   Court and establish their rights since there is dispute as to possession,
    though not for title to possession, existing as on that date. The Executive
    Magistrate is justified to pass that order even though suit for injunction
    had been filed by the appellant.

G         Since the said order was passed when the Civil Suit No. 48 of 1994
    was pending in the Court of Shri N.K. Kaushik, Sub-Judge the High Court
    held that the· Magistrate should have held back his hands pending decision
    in the suit. This Court by the order dated June 13, 1994 suspended the
    operation of the High Court's order and passed the following order :

H            "The order made by this Court on June 6, 1994 shall continue to
                       B.P. SONI v. PRAHALAD SONI                        103

         operate. The learned Subordinate Judge, before whom the A
         proceedings are pending, is directed to dispose of the pending
         interlocutory applications before the end of July 1994 in accord-
         ance with law, after hearing the parties."

       At the hearing it was brought to our notice, that Sub Judge dismissed
 the said suit on July 13, 1994 but the respondent, has filed the appeal No.    B
 178 of 1994 which is pending in the Court of Senior Sub Judge.

       In view of the fact that the Magistrate has stated that he was not in
 a position to decide as to which of the contesting parties are in possession
 of the disputed property, we also decline to decide the question as to who     C
 is in possession of the disputed property. However, the dispute shall be
 decided by the Senior Sub Judge pending in appeal before him. Yet in the
 interest of the utilisation of the Cork Spliting Machine (German Make)
 and smooth running of the ·factories during the pendency of the appeal
 directions are given.
                                                                                D
       (1) The respeindent is at liberty to continue to utilise the machinery
 in disputed property and run the factory.

        (2) Mr. Rakesh Kumar, Advocate practising in this Court is ap-
 pointed as an advocate to Commissioner. He should after giving a notice        E.
 to the counsel for the parties, make immediate inspection of the sealed
 portion of the property, that is, the factory. The Executive Magistrate is
 directed to open the seals put on the disputed property. The Advocate
 Commissioner with the assistance of the expert Engineer or Valuer shall
 assess the condition of the machinery and also its value. He should also
 made an inventory of the machinery existing outside the factory. He would      F
 submit a report in that behalf to the Senior Sub-Judge. He should also take
 the signature of counsel for the parties before submitting the report to the
 Senior Subordinate Judge.

        (3) A sum of Rs. 10,000 is fixed initially as Commissioner' fees        G
 subject to his claiming any additional amount as his fees and of the expert
 Engineer or Valuer, which will be determined by the Senior Sub-Judge
 after submission of his report.

        (4) As soon as the report is submitted by him, the Senior Sub Judge
· should direct the Executive Magistrate to raise and attachment made in        H
     104                   SUPR:EME COURT REPORTS [1994] SUPP. 3 S.C.R.

A    respect of the disputed property permit the respondent to run the factory.

            (5) The respondent shall not remove the machinery within the di.S-
     puted property as well as the machinery kept outside the factory. From the
     date on which the respondent starts running the factory, he shall for every
     working day deposit to the credit of the appeal a sum of Rs. 20,000. The
B    learned Senior Subordinate Judge is directed to dispose of the appeal as
     expeditiously as possible within a period of six weeks from the date of
     receipt of this order. If the respondent before the Senior Subordinate
     Judge succeeding in his contention and on the Court finding that he is the
     owner, then he will be entitled to withdraw the amount deposited by the
-C   respondent herein and the appellant in the appeal pending before the
     Senior Subordinate Judge.

           (6) In the event of the findings going against the respondent herein
     and if any damage to the machinery is caused contrary to noted conditions
     by the Commissioner, after taking delivery of the possession, the appellant
D    herein is entitled to claim damages that may be caused to the machinery.
     The Commissioner shall give his report within a week to the Senior
     Subordinate Judge.

            In the event of the appellant herein succeeding the respondent shall
     give all the costs of the litigation, and payment of the amounts deposited
E    by him. With the assistance of the parties,- it is open to the Commissioner
     to take photographs of the existing machinery and put identification marks
     to the machinery so taken in the presence of the parties with their Signa-
     tures. The parties shall bear the costs of the Commissioner as well as an
     expert or a valuer in equal proportion.

            The appeal is accordingly disposed of.

     G.N.                                                  Appeal disposed of.