Legal Advice

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

Question: 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?

Advise

According to the Code of Criminal Procedure (CrPC), the Executive Magistrate does not have the authority to decide the title dispute under section 145. The power to adjudicate disputes regarding the title of the property lies solely with the civil court. Therefore, any order passed by the Magistrate under section 145 in such cases is null and void.

If a competent civil court has already passed a decree in your favour regarding the title dispute, then you should approach the court for its execution. The person who is in possession of the land has the right to retain their possession until the final judgment of the competent civil court. Therefore, the Magistrate cannot dispossess a person in whose favour a decree has been passed.

The purpose of section 145 is to maintain peace and tranquillity in the case of property disputes. The interference of the Magistrate is necessary to protect the interest of the genuine party. However, the Magistrate cannot dispossess a person who is in lawful possession of the property.

If the Magistrate has passed an order that violates the principle of natural justice and transcends his power, then the order is null and void. The Magistrate must hear all parties before passing any order.

If you find yourself 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 and set aside the order if it finds that the Magistrate has encroached upon its jurisdiction.

Section 145 of the Code of Criminal Procedure provides a temporary remedy to maintain the status quo until the final adjudication passed by the competent court. It should not be invoked to decide the rights and titles of parties. Only a competent civil court has the power to decide such disputes as it affects the civil rights of the parties involved.

Shivendra Pratap Singh

Advocate

High Court Lucknow