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Executive magistrate passed order under section 145 crpc however dispute has decided by the civil court

Shivendra Pratap Singh

Advocate

30/01/2017

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My father built one house. After his death, some disputes arose between sons. My elder brother filed a civil suit for partition of the house. The decree has passed in my favour, but its execution is still pending.

He is trying to dispossess me from the house and also wants to stop the execution of that decree. Therefore, approached the executive magistrate and moved an application under section 145 crpc. The magistrate has passed that order without giving me an opportunity of hearing. This is indeed the violation of natural justice. What should I do?

The Executive Magistrate has no power to determine the title dispute under section 145 of the Code of Criminal Procedure (CrPC). The civil court has exclusive authority to adjudicate the dispute in respect of the title of the property. Hence, the order passed under section 145 is null and void.

As you said that the title has already decided by the competent civil court. The civil court has passed the decree in your favour. Being a decree-holder, you should approach the court for its execution. When you defeated your brother in the civil suit, then he initiated this proceeding to dispossessed you from the property.

The legislature enacted section 145 with a particular purpose to maintain peace and tranquillity, which is being disturbed by the property dispute. Interference of Magistrate is necessary to protect the interest of the genuine party. The person in possession of the land has first-hand right to retain his possession until the final judgment of the competent civil court. Hence the Magistrate cannot dispossess a person in whose favour a decree has passed.

The order is null and void

As far as the case is concerned, this order is null and void and it has no legal force. Firstly the Magistrate has transcended his power and did not act in a bona-fide manner. Therefore, this order is ultra-vires.

Secondly, he did not give you an opportunity of hearing. Thus he violated the principle of natural justice. Every executive order must follow the principle of natural justice. The magistrate is bound to hear all the parties before passing any order.

File a revision

In this situation, you should file a revision petition before the Court of Sessions. The revisional court shall appreciate the evidence produced before the Magistrate. The court shall set aside the order if it finds that the Magistrate has encroached its jurisdiction.

The magistrate did not consider the fact that the opposite party is also in lawful possession. He is also a decree-holder in respect of the disputed property. If a competent civil court has finally decided the dispute, then afterwards Magistrate cannot interfere therein.

A decree holder should not dispossess from the property

Generally, the dispute arises about the title, ownership and possession of the property. Only a competent civil court has the power to decide that dispute because it affects the civil right of the parties. Section 145 provides a temporary remedy in such cases by maintaining the status quo until the final adjudication passed by the competent court.

Section 145 of the code of criminal procedure is one of the preventive measures. This section should not be invoked to decide the rights and titles of parties.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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