Hon’ble Shri Kant Tripathi, J.—This is a petition under Section 482 of the Code of Criminal Procedure (in short ‘the Code’) for quashing the order dated 9.12.2010, passed by the Additional Sessions Judge, Court No. 1, Allahabad, in criminal revision No. 235 of 2010, Ramesh Kumar Sharma and others v. Mahesh Kumar Sharma and others.

2. Heard learned counsel for the applicants and learned AGA for the State and perused the record.

3. It appears that the respondent Nos. 3 to 5 instituted a case under Section 145 of the Code, in the Court of Sub Divisional Magistrate, Meja, district Allahabad, which was registered as case No. 24 of 2010, Mahesh Kumar v. Ramesh Kumar and others. The learned Executive Magistrate passed the preliminary order on 8.3.2010 and called upon the applicants as well as the respondent Nos. 3 and 5 to file their respective written statements by 29.3.2010. On the same day, the learned Executive Magistrate passed the attachment order under Section 146 (1) of the Code.

4. The applicants moved an application dated 23.3.2010 for setting aside the ex parte attachment order. The learned Executive Magistrate recalled the attachment order on the same day. Thereafter the respondent Nos. 3 to 5 moved the application dated 29.3.2010 and prayed for recalling the order dated 23.3.2010. Accordingly the learned Executive Magistrate recalled the order dated 23.3.2010 vide his order dated 9.4.2010, consequently the attachment order revived.

5. The applicants filed the aforesaid revision against the impugned order dated 9.4.2010. The learned revisional Court considered the matter and held that the order dated 9.4.2010 was an interlocutory order within the meaning of Section 397 (2) of the Code and held that the revision was not maintainable.

6. The learned counsel for the applicants submitted that the disputed property was originally owned by one Surendra Narayan, who executed a will on 28.5.1978 in favour of the applicants, of which the father of the respondent Nos. 3 to 5 was a witness. A mutation in favour of the applicants in the revenue record took place vide the order dated 31.7.1979 (Annexure No. 2). After a lapse of twenty four years, the respondent Nos. 3 to 5 moved a restoration application, which was allowed and consequently the mutation order was recalled. The applicants preferred an appeal in the Court of the Additional District Magistrate, Allahabad, against the recall of the mutation order. The learned Additional District Magistrate allowed the appeal and remanded the matter to the Court concerned for a fresh decision in accordance with law. The learned counsel for the applicants submitted that the respondent Nos. 3 to 5 have also filed original suit No. 2674 of 2004, Suresh Sharma and others v. Ramesh Sharma and others, for injunction and cancellation of the Will deed. The Civil Suit is pending in the Court of the Additional Civil Judge (Junior Division), Court No. 6, Allahabad. It was further submitted that despite the pendency of the civil suit, the respondent Nos. 3 to 5 instituted the proceedings under Section 145 of the Code and obtained not only the preliminary order dated 8.3.2010 but also the attachment order of the same day. The learned counsel for the applicants lastly submitted that in view of the judgment of the Apex Court in the cases of Ram Sumer Puri Mahant v. State of U.P. and others, 1985 (1) ACC 427, Jhunamal @ Devandas v. State of Madhya Pradesh and others, (1988) 4 SCC 452 and Amresh Tiwari v. Lalta Prasad Dubey and another, 2000 ACJ 1611, the proceedings under Section 145 of the Code was not maintainable and was liable to be dropped.

7. It may not be out of context to mention that the applicants neither filed any written statement in pursuance of the preliminary order nor moved any application before the Executive Magistrate for dropping the proceeding on the ground of pendency of the Civil Suit. They moved the application dated 23.3.2010 for recalling the attachment order dated 8.3.201