ORDER O.P. Jain, J.
1. This is an application under Section 482, Cr.P.C. for enforcement of an order passed by the S.D.M. in proceedings under Section 145, Cr.P.C.
2. The brief facts of the case are that applicant Ram Charan Das filed an application under Sections 145/146, Cr.P.C. in respect of a house situate in Pargana Gangoh, District Saharanpur. The property was attached by the order of S.D.M., Nakur. It was alleged by Ram Charan Das that the original owner of the property was one Sukhdeo Sao who gifted the property to him about 30 years back but the non applicants are threatening to forcibly dispossess him. The property was attached on 24-11-1982.
3. It may be mentioned that originally one Ramesh was the non-applicant in the case who was the nephew of opposite party No. 6 Narain Singh. Balveer Singh son of Narain Singh who is opposite party No. 4 in the present petition filed an application before the S.D.M. for being irnpleaded as a party to the proceedings. That application was allowed and the proceedings under Section 145, Cr.P.C. were between Ram Charan Das on the one hand and Balveer Singh on the other. The proceedings terminated in favour of Ram Charan Das and vide his order dated 5th May, 1986 the learned S.D.M. declared Ram Charan Das to be the person in possession and he directed opposite party Nos. 2 and 3 not to intefer in the possession of Ram Charan Das.
4. Balveer Singh who was party No. 3 in proceeding under Section 145, Cr.P.C. and who is opposite party No. 4 in the present petition, filed a revision before the Sessions Judge who dismissed the same vide his order dated 5-7-1986 and in this way the order passed by the S.D.M. on 5-5-1986 become final. In spite of this Ram Charan Das was not put in possession of the disputed property.
5. On 24-6-1989 Ram Charan Das files an application before the. District Magistrate complaining that in spite of his success in the Court of S.D.M. and the Sessions Judge he has not been given the possession of the property. On the margin of the application (Annexure-4) the District Magistrate ordered the S.D.M. that Ram Charan Das should be put In possession unless there is some order of a civil court. In spite of this order Ram Charan Das was unable to get possession of the property. He, therefore, filed the present petition under Section 482, Cr.P.C.
6. On 22-1-1991 this Court called for a report from the S.D.M. as to why the disputed property under attachment has not been delivered to the person whose possession was found under Section 145 sub-clause (4), Cr.P.C. in spite of the dismissal of revision on 5-7-1986. A report has been received from the S.D.M. in 1994, which is Annexure 1 to the application filed by the applicant on 19-4-1994. It is a copy of the order sheet dated 16-2-1994 and the S.D.O. has ordered that due to the pendency of the proceedings in the High Court it is not proper to pass any order till some order is received from the High Court. It is ironical that the petition which the applicant has filed for the enforcement of the order passed in his favour on 5-5-1986 itself has become hindrance for him.
7. The facts mentioned above are not disputed. In para 6 of the counter affidavit it is admitted that the S.D.M. passed an order in favour of Ram Charan Das and the order of the S.D.M. was upheld by the Sessions Judge. The objection raised by the non-applicants is that opposite parties Nos. 4 and 5 Balveer and Ranveer's father Narain Singh (opposite party No. 6) filed a suit in the Court of Munsif, Havali, Saharanpur for permanent injunction and also filed an application for interim injunction. The learned Munsif issued an interim injunction on 18-7-1987 restraining Ram Charan Das from interferring with the possession of Narain Singh on the basis of proceedings under S. 145, Cr.P.C. The order passed by the Munsif is Annexure C.A.-l.
8. An interesting fact has come on record. The order of Vth Additional District Judge, Saharanpur dated 15-1-1988 in revision No. 304/ 87 shows that Ram Charan Das and Narain Singh (opposite party No. 6) filed suit against each other and Narain Singh filed an application under Section 10, C.P.C. that the proceeding in the suit filed by him should be stayed. Ordinarily a party files an application. under Section 10, C.P.C. for Saying the proceedings in the suit instituted by the opposite party. But in this case Narain Singh wanted his own suit to be stayed and when his request was turned down he filed a revision before the Vth Additional District Judge, Saharanpur. A copy of the judgment is available on record and the learned Vth Additional District Judge has made the following observations in the same:
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9. It is apparent from" this conduct of Narain Singh that after getting an ad interim order in his favour he wanted it to continue indefinitely and with that end in view he wanted his own suit to be stayed under Section 10, C.P.C.
10. Be that as it may, the question which arises for determination is whether the applicant has become disentitled to obtain possession of the disputed land due to the ex parte injunction issued against him by the Munsif Court on 18-7-1986. The learned counsel for the applicant has argued that the ex parte injunction was issued by the learned Munsif on 18-7-1986 whereas Ram Charan Das had become entitled to get possession of the property by virtue of the order of the S.D.M. dated 5-5-1986. Therefore, possession should have been handed over to Ram Charan Das immediately after 5-7-1986 when revision was dismissed. It is further pointed out by the learned counsel for the applicant that ex parte injuction was obtained without serving any notice on Ram Charan Das, and therefore, he had to file writ petition against Narain Singh etc. in the year 1992 and in the said writ petition an order was passed on 30-4-1992 that until further orders of this Court the operation of the ex parte decree dated 14-10-1991 shall remain stayed. It is argued that the writ petition was filed for quashing the ex parte order and ex parte judgment passed by the Munsif and ex parte decree has been kept in abeyance. Therefore, the said order and decree cannot come in the way of the applicant and he cannot be deprived of his right to obtain possession of the property. It is also argued that in the counter affidavit filed by Dinesh Kumar who is the son of opposite party No. 7 (Lakhan) and pairokar of opposite parties Nos. 3 to 6, it is alleged in para 5 that opposite parties Nos. 3, to 6 are tenants of opposite party No. 7. However, it has not been explained as to how opposite party No. 7 (Lakhan) became the pwner of the property.
11. The learned counsel for the respon-. dents has argued that the orders passed by a Magistrate under Section 145, Cr.P.C. are always subject to the orders passed by a Competent Civil Court. Therefore, when there is injunction order dated 18-7-1986 and subsequent decree dated 14-10-1991 in favour of respondent Narain Singh, he cannot be dispossessed in compliance of the order of Magistrate.
12. In support of this contention the learned counsel for the respondent has cited 1985 ACC 45: (AIR 1985 SC 472) (SC), Ram Sumer Puri Mahant v. State of U.P.
13. However, the above case has been considered by the apex court in 1989 Cri LJ 82: AIR 1988 SC 1973, Jhunamal alias Devandas v. State of M.P. and it was held that the case of Ram Sumer Puri is not applicable to a concluded order under Section 45, Cr.P.C. The observations on para-7 of 1989 Cri LJ 82 (SC) may be reproduced as under at page 1976 of AlR:
"We fail to understand how the High Court 'in this case took advantage of the decision of this Court in Ram Sumer's case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under S. 145, Cr.P.C. made by the Magistrate of competent jurisdiction should be set at naught merely because the successful party has approached the civil Court."
14. Applying the above principles to the facts of the case in hand, it is found that the order of the Magistrate under Section 145, Cr.P.C. was passed on 5-5-1986 and it had become final on 5-7-1986 when the revision was dismissed by the Sessions Judge. This concluded order under Section 145, Cr.P.C. cannot be set at naught merely because the unsuccessful party or his father approached the civil Court and obtained an ex parte order dated 18-7-1986.
15. Moreover the ex parte order dated 18-7-1986 has merged in the ex parte decree dated 14-10-1991 and the operation of that decree has been stayed by this Court on 30-4-1992 in Writ Petition No. 14278/92.
16. It is argued on behalf of the respondent that an application under Section 482, Cr.P.C. cannot be filed as an execution application. It is also argued that the respondent had filed an application for vacating the stay order dated 30-4-1992 passed in the writ and that application having not been decided within fifteen days, the stay order stands automatically vacated.
17. This last argument should have been advanced in writ proceedings and not in the present proceedings which arise out of the case under Section 145, Cr.P.C.
18. There is no reason why the inherent powers of this Court cannot be exercised to give effect to order of S.D.M. dated 5-5-1986 and the order of Sessions Judge dated 5-7-1986. Doing so will not reduce this Court to the status of an executing court. It is the solemn duty of this Court to see that the petitioner who is running from pillar to post from 1986 onwards, gets his due. An order under Section 482, Cr.P.C. is necessary for the purpose of securing the ends of justice in this case.
19. In view of the above discussion the application under Section 482, Cr.P.C. is allowed. S.D.M. Gangoh Nakud and S.H.O. Police Station Gangoh, District Saharanpur are directed to release the property from attachment and to hand over its possession to petitioner Ram Charan Das immediately. This direction is issued subject to any direction that may be given in writ Petition No. 14278/92. But the S.D.M. and the S.H.O. will not defer the handing over of possession of Ram Charan Das and will not wait for the decision of the writ petition.