Andhra HC (Pre-Telangana)
Prince Shahamat Ali Khan vs Sultan-Ul-Uloom Education Society And ... on 4 November, 2003
Equivalent citations: 2003(6)ALD453, 2003(2)ALD(CRI)945, 2003(6)ALT307
Bench: B. Sudershan Reddy, K.C. Bhanu
JUDGMENT
1. The writ appeal arises out of the interlocutory order dated 17-9-2003 passed in WVMP No. 2870 of 2003 by a learned Single Judge making the interim stay granted on 22-8-2003 in WPMP No. 22079 of 2003 absolute. That during the course of hearing of the writ appeal, the learned Senior Counsel appearing on behalf of the appellant as well as the learned Counsel including the learned Government Pleader for Revenue appearing on behalf of the respondents requested the Court to take up the writ petition itself for hearing and disposal since the questions that fall for consideration in the writ appeal as well as the writ petition are one and the same. That at the request of all the parties represented by their Counsel, we have taken up the writ petition itself for final disposal.
2. We shall refer the parties as arrayed in W.P.No. 17739 of 2003 for the sake of convenience. The petitioner Sultan-ul-Uloom Educational Society represented by its Honorary Secretary invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to issue a Writ of Mandamus declaring the proceedings No. B/570/98 dated 18.8.2003 passed by the Special Executive Magistrate, Hyderabad is arbitrary and without any jurisdiction. The petitioner accordingly prayed for a consequential relief to declare the said proceedings as unenforceable as against the writ petitioner.
3. The said Executive Magistrate, Hyderabad vide order dated 18.8.2003, directed the 2nd respondent-Mandal Revenue Officer, Shaikpet Mandal to raise the attachment of the disputed property in terms of the decree and judgment of the Chief Judge, City Civil Court, Hyderabad made in O.S. Nos. 154 and 181 of 2003 dated 21.7.2003. The Special Executive Magistrate is not impleaded as a party respondent in the writ petition.
4. In order to consider the issue whether the impugned order suffers from any jurisdictional errors and vitiated by any errors apparent on the face of the record, we shall notice the relevant facts leading to the filing of the writ petition, which reveal the nature of controversy between the parties.
5. Late Nawab Mir Osman Ali Khan Bahadur, the H.E.H. Nizam VII had created the 4th respondent trust known as Moazzam Jah Trust, for the benefit of his second son Nawab Moazzam Jah Bahadur, the father of the 5th respondent herein. The Trust inter alia provided that the trustees should receive certain amount from out of the trust fund to provide a suitable residence for Nawab Moazzam Jah Bahadur during his lifetime. The 4th respondent trust after taking the requisite permission from the Chief Judge, City Civil Court, Hyderabad in Case No. 237/2 of 1953-54, purchased under a registered sale deed dated 1.5.1954 property bearing Municipal No. 8-2-249 to 267 known as "Mount Pleasant" totally admeasuring Ac.24.10 guntas comprising of several buildings etc., situate at Road No. 3, Banjara Hills, Hyderabad. The same shall, hereinafter be referred to, as the petition schedule property.
6. The case set up by the writ petitioner is that in and around the year 1980, on the request of the beneficiary of the trust, the 4th respondent was looking for a suitable purchaser for purchasing the said property. The 4th respondent had negotiations with the petitioner society for sale of the petition schedule property and finally it was agreed that it would be sold by the 4th respondent to the petitioner society for a total sale consideration of Rs. 66,77,000/-. The society claims to have made the payments of the said amount through various cheques, which were all encashed by the 4th respondent trust excepting a cheque for an amount of Rs. 15,00,000/-. The society was inducted into possession of the said land by the trust initially as a tenant and subsequently as a purchaser. The petitioner society since 1980 has been in exclusive possession and enjoyment of the same in their own right as an agreement holder. It is claimed that the possession of the petitioner society in respect of the said property was thus open, uninterrupted and unchallenged as agreement holders in possession since 1980.
7. The 5th respondent who is admittedly the son of Prince Moazzam Jah Bahadur filed a suit against the petitioner society being O.S. No. 1207 of 2000 on the file of the DC Junior Civil Judge, City Civil Court, Hyderabad claiming to be in possession of an extent of Ac.4.10 guntas of land forming part of the said land and sought the relief of injunction and the same is pending in the Court. The petitioner society also filed a suit for specific performance against the 4th respondent trust and the 5th respondent in respect of the said property before the City Civil Court, Hyderabad which is "in the process of being numbered".
8. That all of a sudden on 21.8.2003, a group of about 25 to 30 persons broke a small portion of the compound wall of the said property arid tried to trespass into the campus of the society. The society with great difficulty resisted the attempts of the said group of persons and lodged a complaint with the Station House Officer, Punjagutta Police Station. The agents of the 5th respondent approached the Station House Officer and represented that they have obtained orders from the 2nd respondent and the Special Executive Magistrate, Hyderabad for handing over possession of about Ac.6.00 of land to respondent No. 5. Only then the petitioner society came to know about the order passed by the Special Executive Magistrate.
9. The case of the petitioner society is that it is not aware of any proceedings initiated under Section 145 of the Code of Criminal Procedure (Cr.P.C) or order, if any, passed by the Special Executive Magistrate concerning the possession of the said property or any portion thereof. The petitioner society is admittedly in possession of the schedule property right from the year 1980. The proceedings purportedly carried out by the 2nd respondent-Mandal Revenue Officer and the Special Executive Magistrate, Hyderabad are totally arbitrary, irrelevant and against all principles of natural justice.
10. Sri Vilas Afzalpurker, the learned Counsel for the petitioner contended that the Special Executive Magistrate ought to have realized that the property in dispute has been in continuous peaceful and uninterrupted possession of the petitioner initially as a tenant and thereafter as agreement holder since 1980 and as such no orders for delivery of possession could have been passed without recourse to the notice to the petitioner. It was submitted that the Special Executive Magistrate did not take possession of any portion of the said property and much less the land admeasuring Ac.6.00 from the petitioner and therefore could not have delivered the same to the 5th respondent herein through his General Power of Attorney Holder. That parallel proceedings, one in the Civil Court and another before the Special Executive Magistrate under Section 145 Cr.P.C. cannot be allowed to go on. The whole of the proceedings initiated under Section 145 Cr.P.C are void ab initio. That taking possession or delivery of any immovable property by the Special Executive Magistrate, in purported exercise of power under Sections 145 and 146 Cr.P.C. is not contemplated and therefore the impugned order is totally vitiated.
11. Sri P.P. Rao, the learned Senior Counsel appearing on behalf of the 5th respondent made several submissions, which we shall notice only after referring to the claim put forth by the 5th respondent and the facts narrated in support of the claim.
12. In the counter-affidavit filed by the 5th respondent, a reference is made to various proceedings between the petitioner society and the 5th respondent. The writ petition is liable to be rejected on the ground of vagueness as well as suppression of facts and false statement. That as per the terms of the trust, the trustees have no power of alienation. The 5th respondent is the only son of Prince Muazzam Jah born to Sahebzadi Anwari Begum, The Nizam by letter dated 16.7.1957 addressed to the Trust reiterated that the only subsisting marriage of the Prince recognized by him was his marriage with Sahebzadi Anwari Begum and she and her issues will be entitled to succeed in the event of Prince's demise and to receive the benefits provided under the trust deed. The Prince Muazzam Jah died on 14.9.1987. Thereupon, the Trust by its resolution dated 9.10.1987 recognised the 5th respondent as the sole beneficiary of the Trust and by a letter dated 5.1.1995 wound up its affairs and handed over the corpus of all the assets to the 5th respondent.
13. That one Fatima Fouzia claiming to be the heir of Princes Muazzam Jah Bahadur filed a suit O.S. No. 921 of 1979 on the file of the II Assistant Judge, City Civil Court, Hyderabad for perpetual injunction against the Trustees with regard to Ac.6.00 of land on the western side of the premises on the ground that she is in possession of the property under an oral gift from Prince Muazzam Jah Bahadur. The 4th respondent Trust also filed O.S. No. 243 of 1982 against her for injunction in the Civil Court and obtained temporary injunction. There was men a scramble for possession leading to initiation of proceedings under Section 145 Cr.P.C. by the Special Executive Magistrate, Hyderabad and the said land admeasuring Ac.6.00 was attached on 13.10.1982 under Section 146 Cr.P.C. The Tahsildar, Golconda took possession of the land as per the orders of the Special Executive Magistrate on 24.1.1983. The Special Executive Magistrate vide his orders dated 15.5.1990 finally directed to deliver the possession of Ac.6.00 of land to the trustees and accordingly, the possession was delivered to the trustees by the Tahsildar. The property was in custodial legis. The said Fatima Fouzia filed AAO No. 280 of 1983 in this Court against the temporary injunction granted and the same was dismissed on 28.12.1984. LPA No. 429 of 1985 preferred by her was also dismissed on 20.1.1986 by this Court. That following the judgment, the Special Executive Magistrate by order dated 15.5.1990 closed the proceedings initiated under Section 145 Cr.P.C and released the possession in favour of the trustees. In the meanwhile, the suit filed by Fatima Fouzia was transferred to the Court of the IV Additional Judge where the suit filed by the Trustees was pending. As per the common judgment dated 20.12.1990, it was found that the Trustees were in possession of Ac.6.00 of land and their suit was accordingly decreed and the suit filed by her was dismissed. She thereafter filed CCCA No. 80 of 1992 in the High Court and obtained an interim order on 30.11,1994 against the Trustees not to alienate the said extent of land. The said appeal was dismissed on 27.9.2001.
14. The said Fatima Fouzia filed O.S. No. 2892 of 1998 on 30.6.1998 in the Court of the IX Junior Civil Judge for injunction with regard to the same Ac.6.00 of land and obtained a temporary injunction. She made an attempt to interfere with the possession of the said extent of land resulting in initiation of proceedings under Section 145 Cr.P.C. The Special Executive Magistrate once again passed a preliminary order dated 8.7.1998 and attached the property on 10.7.1998. The Mandal Revenue Officer took the property into the custody vide panchanama dated 10.7.1998. The petitioner society, who is in occupation of the adjoining area of Ac.14.00 of land and buildings is perfectly aware of the said proceedings but suppressed the factum of redelivery of possession to the 5th respondent by the Mandal Revenue Officer on 20.8.2003 and filed this writ petition with false and baseless allegations. It is unnecessary to notice the further details and controversy between the parties in this regard.
15. Sri P.P. Rao, the learned Senior Counsel appearing on behalf of the 5th respondent with his usual eloquence and clarity submitted that the writ petition is totally misconceived and not maintainable in law as it involves disputed questions of title and possession. The writ petition deserves dismissal on the ground that the petitioner society suppressed the true and relevant factors and also made several misrepresentations only in order to obtain an ex parte interim order from this Court. The learned Senior Counsel further contended that the impugned order dated 18.8.2003 is an order made in compliance with the directions given in the decree of the Civil Court and it is not an independent order made in his discretion under Sections 145 and 146 Cr.P.C and the same cannot be challenged in isolation without challenging the decree of the Civil Court. The decree cannot be challenged in a writ proceeding and the challenge to a consequential proceeding is not maintainable in law. It was further contended that the writ petitioner has already filed an application for leave to appeal against the said judgment and decree dated 21.7.2003 and thus availed an alternative and effective remedy available to it in law.
16. It was further submitted that the Civil Court is competent to give consequential directions after deciding the issue of title to enable the successful party to obtain possession of the land in dispute, which is in custodial legis under Sections 145 and 146 Cr.P.C. The Special Executive Magistrate is bound to implement the decree of the Civil Court and the same has been rightly done by the Special Executive Magistrate.
17. We have in somewhat detail noticed the facts not with any view to express our opinion on any of the controversial issues relating to right, title or interest of any of the parties in respect of the land in question. But, at the same time, we cannot completely ignore certain glaring facts in the process of appreciating as to whether the writ petitioner has approached this Court with clean hands by stating all the relevant facts as is required in law. The petitioner society claims to be in possession of the entire extent of Ac.24.10 guntas of land, initially under a lease and later under an agreement of sale purported to have been executed by the 4th respondent Trust. Neither of the documents has seen the light of the day. At any rate, they are not filed along with the writ petition for the perusal of this Court. We have seen the correspondence between the Trust and the petitioner society. A perusal of those letters reveals the nature of controversy. They speak about the possession of the petitioner society of the building bearing door No. 8-2-249 with its appurtenant land admeasuring 1000 square meters and Ac.14.00 of open land only is covered by the agreement of sale. The draft sale deed filed along with the writ petition is neither attested nor signed. The amount received as earnest money also speaks about the price of Ac.14.00 of open land and not Ac.24.10 guntas of land as is being claimed by the petitioner society. The exchange of notices between the petitioner society and the trust and the contents thereof also do not disclose the possession of the writ petitioner society with regard to the whole of the extent of land of Ac.24.10 guntas. Thus, we are of the clear opinion that the petitioner did not approach this Court with clean hands and all the facts that are required to be stated are not stated fully and properly.
18. In the facts and circumstances of the case, it becomes very difficult for us to believe the statement of the writ petitioner society that it was not aware of the proceedings initiated under Section 145 Cr.P.C. at any point of time. The very fact that the petitioner society filed the suit for specific performance of the agreement of sale against the 4th respondent trust after a period of more than 23 years speaks for itself. The suit stated to have been filed in the month of March, 2003, according to the petitioner society, is still in the process of being numbered.
19. The question that falls for consideration is as to whether it is possible for this Court to express any opinion with regard to the right, title and interest and inter se claims of the parties in this writ petition.
20. In Sohan Lal v. Union of India, , the Supreme Court observed that it will not enquire into the merits of rival claims of title to the property in dispute as any such attempt would amount to entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law, which are in dispute requiring determination by a competent Court of civil jurisdiction.
21. In Ghan Shyam Das Gupta v. Anant Kumar Sinha, , the Supreme Court held as under:
"The remedy provided under Article 226 is not intended to supercede the modes of obtaining the relief before a Civil Court or to deny defences legitimately open in such actions. As was observed in State of A.P. v. Chitra Venkata Rao, , the jurisdiction to issue a writ of Certiorari is supervisory in nature and is not meant for correcting errors like an appellate Court.
The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes and the Judge being entrusted exclusively with the administration of justice, is expected to do better."
22. In State of Rajasthan v. Bhawani Singh, 1993 Supp (1) SCC 306, the Supreme Court having noticed that the writ petitioner therein was practically asking for a declaration of his title observed:
"disputed questions relating to title cannot be satisfactory gone into or adjudicated in a writ petition."
23. It is fairly well settled by a catena of decisions that such disputed questions of title cannot be gone into by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It is well recognised principle of law that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between the parties. The remedy under Article 226 shall not be available except where violation of some statutory duty on the part of a statutory authority is allowed and in such a case the Court will issue appropriate directions to the authority concerned. The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under general law, civil or criminal are available. It is not intended to replace the ordinary remedies by way of suit or application available to a litigant. (See for the proposition New Satgram Engineering Works v. Union of India, ; Mohan Pandey v. Usha Rani Rajgaraia, ; Lambadi Pedda Bhadru v. Mohd. Ali Hussain, (DB); Union of India v. S.M. Hussain Rasheed (DB)).
24. Having heard the Counsel for the parties, we are of the clear opinion that the writ petition is misconceived so far as it asked for, in effect, a declaration of writ petitioner's title to the property. It is clearly evident from he facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed questions relating to title cannot be satisfactorily gone into or adjudicated in the writ petition.
25. That apart, the petitioner itself claims to have already approached the Civil Court by way of suit for specific performance of agreement of sale purported to have been executed by the Trust in its favour for the entire extent of Ac.24.10 guntas of land and the same is stated to be in the process of being numbered. Nothing prevented the writ petitioner from impleading the 5th respondent herein also for seeking appropriate relief against him. It is not known as to how a suit filed in the month of March, 2003 is still awaiting its registration. It is also admitted that the petitioner herein had already filed the appeal against the decree and judgment of the Chief Judge, City Civil Court, dated 21.7.2003 made in O.S. Nos. 154 and 181 of 2003 inter alia directing the Special Executive Magistrate to handover the suit schedule property admeasuring Ac.6.00 to the General Power of Attorney Holder of the 5th respondent herein as per the procedure. Thus, the petitioner had already availed alternative and effective remedies available to it in law. It cannot be allowed to pursue parallel remedies. The writ petition deserves dismissal on this ground also.
26. However, an attempt was made by the learned Counsel for the petitioner to contend that it will not be possible for the writ petitioner to resist execution of the decree granted by the Chief Judge, City Civil Court since it is not a party to the decree. The submission is misconceived. The Civil Procedure Code contains elaborate and exhaustive provisions for dealing with the questions of execution of a decree. The innumerous rules of Order 21 of the Code of Civil Procedure take care of different situations providing effective remedies not only to judgment debtors and decree holders but also to claimant-objectors as the case may be. Even a regular suit in the Civil Court is maintainable challenging the decree. The petitioner society cannot be allowed to by pass the remedies available under common law where their claim can be investigated and effectively adjudicated. The writ petition is totally misconceived.
27. However, the learned Counsel for the petitioner contended that in view of the termination of the civil proceedings culminating into decree and judgment dated 21.7.2003 made in O.S. Nos. 154 and 181 of 2003, by the Chief Judge, City Civil Court, the proceedings under Sections 145 and 146 Cr.PC cannot be continued as a parallel course of action. The proceedings have to abate. Reliance has been placed in support of the decision of the Supreme Court in Ram Sumer Puri Mahant v. State of U.P., . We fail to appreciate as to how the said judgment renders any assistance and support the contention of the petitioner. The Supreme Court had noticed the fact that in respect of the property in question, there was a suit for possession and injunction filed in the Court of Civil Judge, Ballia, wherein the question of title was gone into and by judgment dated 28.2.1981, the said suit was dismissed. The appellant in the Supreme Court was the defendant in that suit and an appeal has been carried from the decree of the Civil Court and the same was still pending disposal before the appellate Court. It is under those circumstances, the Supreme Court observed:
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel proceedings under Section 145 Cr.PC. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before us."
28. In the case on hand, the Executive Magistrate vide the impugned order, merely implemented the direction contained in the decree granted by the Chief Judge, City Civil Court, Hyderabad. There are no parallel proceedings. On the other hand, the Executive Magistrate has put an end to the proceedings already initiated under Section 145 Cr.PC. In Prakash Chand Sachdeva v. State, , the Supreme Court while considering the observations made by it in Ram Sumer Puri Mahant (supra) observed:
"True a suit or remedy in Civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the Criminal Court as observed by this Court in Ram Sumer puri Mahant v. State of U.P. 'particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of Receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation'. The normal rule is as stated by the Court in Puri case. But, that was a suit based on title. And that could be decided by a Civil Court only. That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession, but on the question of possession, the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. Neither the High Court nor the Sub-Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under Section 107 are for public peace and tranquility whereas those under Section 145 relate to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under Section 107 could not furnish foundation for dropping the proceedings under Section 145. Nor the law laid down in Puri case could result in rejecting the application filed under Section 145 Cr.P.C. There being no dispute of title between the appellant and respondent, the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by the two Courts below cannot be maintained."
29. In the case on hand, the Civil Court having dismissed the suit filed against respondents 4 and 5 herein, directed the Special Executive Magistrate to handover the property admeasuring Ac.6.00 of land to the 3rd defendant therein who is the General Power of Attorney Holder of the 5th respondent herein. The Executive Magistrate merely implemented the decree. In Ram Sumer puri Mahant (supra) itself, it is observed that the decree of the civil Court is binding on the Criminal Court. The Civil Court is competent to give consequential directions after deciding the issue of title to enable the successful party to obtain possession of the land in dispute, which is in custodial legis under Sections 145 and 146 Cr.P.C.
30. However, the learned Counsel for the petitioner relied Upon the decisions of the Supreme Court in Amaresh Tiwari v. Lalta Prasad Dubey, and Ranbir Singh v. Dalbir Singh, (2000) 3 SCC 700, in support of his submissions. In our considered opinion, the said decisions do not in any manner support the contention put forth by the learned Counsel for the petitioner. In Amaresh Tiwari (supra), it is observed:
it is not that in every case where a civil suit is filed, Section 145 Cr.P.C proceedings would never lie. it is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court that proceedings under Section 145 should not be allowed to continue. This is because the Civil Court is competent to decide the question of title as well as the possession between the parties and the order of the Civil Court to be binding on the Magistrate.
31. The decision in Ranbir Singh (supra) is an authority for the proposition that under the limited scope of the proceedings under Section 145 Cr.P.C. the Court is mainly concerned with the possession of the property in dispute on the date of preliminary order and dispossession, if any, within two months prior to that date; the Court is not required to decide either title to the property or right of possession of the same. These decisions, in no manner, supports the contentions urged by the learned Counsellor the petitioner.
32. We do not find any merit in the contention that the question of taking of possession and delivery thereof under Section 145 Cr.PC does not arise since the provision does not speak about taking possession and delivering the same to the successful party after the termination of the proceedings. In Deo Kuer v. Sheo Prasad, , the question that had arisen was whether in view of the attachment, the appellant therein could have, in their suit, asked for the relief of delivery of possession to them. It was contended that the possession in the case of attachment under Section 145 Cr.PC is different and in such a case the Magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the Section was made. A suit for declaration of title pending such an attachment is incompetent. The Supreme Court noticed that the attachment under Section 145 Cr.P.C in that case was still continuing and no decision as yet has been given in the proceedings resulting in the attachment. The Court observed:
"in a suit for declaration of title to property filed when it stands attached under Section 145 Cr.PC it is not necessary to ask for further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant."
33. The observations made by the Supreme Court in clear and categorical terms reveal that in the case of attachment under Section 146 Cr.P.C the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession. The Court further observed that it was not necessary to ask for possession when property was in custodial legis. There is no doubt that the property under attachment under Section 145 of the Code is in custodial legis. The proceedings under Section 145 undoubtedly involve taking of and holding possession by the Magistrate on behalf of the party whom he ultimately finds to have been in possession.
34. We have already noticed that the Special Executive Magistrate, Hyderabad vide order dated 8.7.1998, having noticed the nature of the dispute leading to breach of peace and public tranquility between Respondent No. 5 and others including Princess Fatima Fouzia directed attachment of the land admeasuring Ac.6.00 situate in survey No. 359, Road No. 3, Banjara Hills, pursuant to which the Mandal Revenue Officer has taken the land into his possession and handed over the same to the Mandal Revenue Officer on 10.7.1998 to protect the land. That ultimately the Civil Court found the 5th respondent to be in possession and accordingly directed the delivery of possession to him through his General Power of Attorney Holder. We do not find any infirmity in the order passed by the Special Executive Magistrate as he is bound to implement the directions of the Civil Court.
35. However, a feeble attempt was made by the learned Counsel for the petitioner to contend that the petitioner being a 3rd party to the proceedings is not bound by the order passed by the Special Executive Magistrate. This Court in K. Pavan v. Special Executive Magistrate, , observed that;
"not only the parties to the proceedings but every person claiming any right to possession in respect of the property under attachment is bound by the orders of attachment. Otherwise, the very purpose of attachment ordered to avoid the breach of peace would get defeated and frustrated. It is true that the order of warrant of attachment is characterized by the Supreme Court as 'Police Order'. It may not confer any right, title or interest upon any person but such order shall continue to be in operation until the same is modified either by the Executive Magistrate or determination of rights of the parties by a competent Court of civil jurisdiction."
36. The Executive Magistrate in exercise of the power under Section 146 Cr.P.C is even authorized to appoint a Receiver if he thinks fit and such Receiver shall have all the powers of a Receiver appointed under the Code of Civil Procedure, 1908. The life of the said order is coterminous with passing of a decree by the Civil Court. Therefore, the contention that the proceedings initiated under Sections 145 and 146 Cr.P.C. do not involve taking over the possession and delivering the same after either termination of the proceedings or after the determination of rights by a Civil Court does not arise is unsustainable.
37. For all the aforesaid reasons, we do not find any merit in this writ petition.
38. We may however hasten to add that we have not expressed any opinion about the right, title or interest or claim of any of the parties in respect of the land admeasuring Ac.6.00 forming part of Ac.24.10 guntas situate at Road No. 3, Banjara Hills, Hyderabad. It is for the parties to get the issues resolved in a properly constituted proceedings. The observations, if any, made are confined only for the purpose of disposal of this writ petition and shall have no bearing upon any proceedings that maybe pending between the parties or the proceedings to be initiated by anyone of them. The appeal stated to have been preferred by the petitioner and the suit filed for specific performance of agreement of sale shall have to be determined on their own merit uninfluenced by the observations, if any, made in this order.
39. In the result, the writ petition fails and shall accordingly stand dismissed with costs. The writ appeal is allowed. Consequently, the interim order passed by this Court in WPMP No. 22079 of 2003 shall stand vacated.