The main legal point established in the judgment is that when possession is being examined by the civil court and parties can approach the civil court for protection of the property, parallel proceedings under section 145 of the CrPC should not continue.

Pramod Kumar Srivastava, J.

1. In case no. 4/ 2005 Chheddu and others v. Faiyaz Ali & others, under section 145 CrPC Sub-Divisional Magistrate, Bindki, Fatehpur had passed first order dated 20-05-2005 u/s 145(1) CrPC by which notice was directed to be issued to opposite parties, and on same day second order u/s 146(1) CrPC was passed for attachment of disputed property of plot no. 548, with direction to police to hand over possession of said prooperty to any supurdgar. One opposite party of original case namely Shamsunnisa (present O.P. no.-1) had preferred two against the said two orders. Criminal Revision no. 147/ 2005 was filed against order u/s 146(1) CrPC, and another Criminal Revision no. 198/ 2005 was filed against order u/s 145(1) CrPC. In both revisions parties were same relating to same case. Both revisions were heard together and were decided jointly by one single judgment dated 23-02-2008 of the Sessions Judge, Fatehpur. This impugned judgment dated 23-02-2008 has been challenged by Chheddu and others (first party of original case no. 4/2005).

2. Admitted case of the parties is that civil suit no. 101/ 1993 Shamsunnisa v. Chheddu is pending in the Civil Court in which rights of the parties are involved and had to be declared. In said civil suit Court had passed interim injunction order. During pendency of proceedings of said suit no. 101/ 1993 proceedings of case no. 4/ 2005 Chheddu and others v. Faiyaz Ali & others, under section 145 CrPC was started in the court of Sub-Divisional Magistrate, Bindki, Fatehpur in which to orders u/s 145(1) CrPC for issuing notice and u/s 146(1) CrPC for attachment of property were passed. Then revisions filed against these two orders dated 20-05-2005 were allowed by impugned judgment of Sessions Court.

3. Learned counsel for the revisionist contended that two orders dated 20-05-2005 u/s 145(1) and 146(1) CrPC are merely interlocutory orders against which revision is not maintainable, therefore impugned judgment of Sessions Judge is erroneous and should be quashed.

4. Learned counsel for the opposite parties no. 2 to 6 contended that proceedings u/s 145 CrPC are of summary nature. If rights of parties are disputed before competent civil court, and right of any party is protected by the court through interim injunction, then aggrieved party should place its grievance before the competent civil court and summary proceedings u/s 145 CrPC are not maintainable in such cases. Parallel proceedings cannot be carried out in such cases. Since order u/s 146(1) CrPC adversely affected the right of opposite parties therefore such order is not interlocutory order and revision was maintainable. There is no error or impropriety in impugned judgment. So present revision should be dismissed.

5. Heard learned counsels for the parties and perused records.

6. Settled legal position is that the recourse of section 145 CrPC can be had only when there is dispute as to possession of property only, and that too till the matter is not sub judice in the court of competent jurisdiction. In Amresh Tiwari v. Lalta Prasad Dubey & another; 2000 Cri.L.J. 2226=2000 All.CJ 1611 Hon'ble Apex Court had held that:

"12. The question then is whether there is any infirmity in the order of the SDM discontinuing the proceedings under Section 145 of the Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. (1985 All.CJ 240) In this case it has been held as follows: (SCC pp. 428-29, para 2) (All.CJ 240 Para 2)

"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 criminal proceeding under Section 145 of the Code. 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. Counsel for Respondents 2-5