SDM cannot attach property under section 146 crpc when a civil suit is pending before the civil court. I am the owner of a house which I purchased in 2020. After purchase of that flat one person namely Pawan came and claimed that the property belongs to him. I produced him sale deed and other documents like electricity connection, water tax receipts etc to prove that I am the owner of this flat. But he denied and continuously claimed that he is the owner. I saw his intention that he is trying to interfere in my property. I immediately filed a suit for declaration of title and injunction in the civil suit. After some time when he came to know that I have filed a civil suit and a copy of it was served on his address, he filed a case before the SDM under section 145 crpc and property was attached by the order of the SDM. Now the SDM is compelling me to vacate the house. I am very tense because the opposite party is trying to evict me from my own property. A revision application has been filed by me to the Commissioner.
Asked from: Bihar
The order passed by the SDM (Sub-Divisional Magistrate) appears to be erroneous and without jurisdiction. When a civil suit regarding the same property is pending before a competent civil court, the SDM has no authority to entertain the matter or pass any order under Sections 145 and 146 of the Code of Criminal Procedure (CrPC).
The SDM can interfere only when there is a likelihood of breach of peace arising from a dispute concerning immovable property, and even then, the applicant must be in possession of the disputed property. In this case, the applicant who moved the application under Section 145 CrPC is not in possession of the property. Therefore, the SDM had no legal power to pass an order under Section 145 CrPC.
Under such circumstances, a revision petition is not maintainable and is liable to be dismissed for want of jurisdiction. Since the proceeding arises under the provisions of the CrPC, the appropriate remedy is to file a petition before the High Court under Section 482 CrPC seeking to quash the SDM’s order.
In Amresh Tiwari v. Lalta Prasad Dubey, AIR 2000 SC 1504, the Hon’ble Supreme Court held that when a civil suit concerning the same property is pending before the competent civil court, no order can be passed under Section 145 CrPC.
In light of the above judgment, the order passed by the SDM is liable to be quashed. Therefore, it is advisable not to press the revision petition and instead immediately file a petition before the High Court under Section 482 CrPC. SDM cannot attach property under section 146 crpc when civil suit is pending in the civil court. For more help please visit Kanoon India
