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12. Section 146 Cr.P.C. confers on the Magistrate power to attach the subject of dispute and to appoint a Receiver. The Section opens with the wording that if the Magistrate at any time after making the order under Sub-section (1) of Section 145 Cr.P.C. 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 Cr.P.C. or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to possession thereof. A close scrutiny of the provision would show that the Magistrate can pass an order to attach the subject of dispute only after making an order under Sub-section (1) of Section 145 Cr.P.C. Secondly, he must consider the case to be one of emergency. Thirdly, he must be satisfied from the materials that none of the parties was in possession of the disputed property as is referred to in Section 145 Cr.P.C. or he must not be sure as to which one of them was then in such possession of the subject of dispute. Satisfaction of the first and second conditions stated above are essential for invocation of the power of the Magistrate under Section 146 Cr.P.C. Out of the third condition, any one part at least should be established. Then he can pass an order under Section 146 Cr.P.C. It is evident that the provision is intended to prevent breach of the peace in respect of immovable property where there is a scramble for possession. The proviso to Section 146(1) Cr.P.C. enables the Magistrate to withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Sub-section (2) of Section 146 Cr.P.C. empowers the Magistrate to appoint a Receiver to the subject of dispute, if no Receiver was appointed by any competent civil court. He may also make such arrangements as he considers proper for looking after the property. The Receiver so appointed by the Magistrate shall be under the control of the Magistrate and the Receiver appointed shall have all the powers under Order 40 of the Code of Civil Procedure, 1908. The proviso therein requires that in the event of a Receiver being subsequently appointed in relation to the subject of dispute by any civil court, the Magistrate shall order the Receiver appointed by him to hand over possession of the subject of dispute to the Receiver so appointed by the civil court and the Magistrate shall discharge the Receiver appointed by him. It also empowers the Magistrate to make such incidental and consequential orders as may be just.

13. The power conferred on an Executive Magistrate under Section 146 Cr.P.C. is to be exercised by him to preserve the status quo of a property, which is the subject matter of a dispute under Section 145 Cr.P.C. The steps envisaged under Section 146 Cr.P.C. enable the Magistrate to maintain peace and tranquility in the area. The above provisions clearly show that the decision of the Executive Magistrate in respect of the subject of dispute is subservient to and dependent on the decision of a competent civil court. To put it short, it can be stated that Sections 145 and 146 Cr.P.C. are measures to be adopted by an Executive Magistrate to avoid any disruption of peace and tranquility in an area and also to maintain public order. By the said proceedings, the Executive Magistrate cannot decide title to or right to possess the subject matter of dispute.

15. Learned counsel for the respondents 3 and 4 contended that the Executive Magistrate has flouted the law in Section 146 Cr.P.C., wherein it is mentioned that the power to attach the property in dispute and to appoint a Receiver arises only after the Magistrate passing an order under Section 145(1) Cr.P.C. As discussed above, the wording in Section 146(1) Cr.P.C. makes the position very clear. Following observation in Lilly Franklin v. Wilson (1977 KLT 871) is relevant for our purpose:

Based on another decision of the Supreme Court in Ashok Kumar v. State of Uttarakhand and others (2012 KHC 4741), it is contended by the learned counsel for respondents 3 and 4 that the ingredients necessary for passing an order under Section 145(1) Cr.P.C. would not automatically attract for the attachment of the property. The Magistrate has to see whether the conditions prescribed in Section 146 Cr.P.C. have been satisfied before passing an order of attachment.

16. Shri K.P.Sreekumar, learned counsel for the petitioners submitted that the SDM had given several opportunities to respondents 3 and 4 to appear before him and to present their case at the hearing. Annexures-A1 to A6 are the notices issued by the SDM. It is the case of the petitioners that despite receiving notices, the contesting respondents did not appear before the SDM and try to establish their case. Annexure- A1 was issued by the SDM on 23.09.2011, ie., previous to Annexure-A7 order dated 24.10.2011. Other notices issued by the SDM to the contesting respondents were subsequent to the passing of Annexure-A7 order. Learned counsel for the petitioners relying on the treatise on 'Legal Maxims' by Herbert Broom contended that where, an irregularity has been committed and where the opposite party knows the irregularity, it is a fixed rule observed by all the courts that the respondent should come in the first instance to avail himself of it and not allow the other party to proceed to incur expense. This contention perhaps would have been good, had the SDM complied with the mandatory provisions under Sections 145(1) and 146(1) Cr.P.C.