Ram Kishan Khetan and ors. Vs. Udayanath Pradhan - Court Judgment

Excerpt:

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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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Code Context
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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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			'appellant' => 'Ram Kishan Khetan and ors.',
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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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		'counselplain' => '',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]
Code Context
                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'court' => 'Orissa',
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			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
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			'pubs' => '2009CriLJ4676',
			'ratiodecidendi' => '',
			'respondent' => 'Udayanath Pradhan',
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		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
		'observations' => null,
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		'respondent' => 'Udayanath Pradhan',
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Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]
Code Context
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			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => '2009CriLJ4676',
			'ratiodecidendi' => '',
			'respondent' => 'Udayanath Pradhan',
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		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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		'counselplain' => '',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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View::_evaluate() - CORE/Cake/View/View.php, line 971
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orderkumari sanju panda, j.1. this criminal misc. case has been filed by the petitioners under section 482, cr. p.c. challenging the order dated 17-4-2008 passed by the learned executive magistrate, jharsuguda in cmc no. 186 of 2008.2. the facts as narrated in the application are as follows:the present petitioners are the second party members in a proceeding under section 145, cr. p.c. they were in possession of the disputed land total measuring ac. o.560 decs, in plot nos. 1339 and 1340 (part plots) under m. s. khata no. 386 in mouza jharsuguda town, unit no. 7, dist-sambalpur. said land originally belonged to an ex-intermediary, namely, lalit mohan shankar deo and was recorded as bhogra land. the said ex-intermediary inducted one govinda chandra pattnaik as tenant and executed a.....

Judgment:

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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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ORDER

Kumari Sanju Panda, J.

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			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'court' => 'Orissa',
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			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009CriLJ4676',
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			'respondent' => 'Udayanath Pradhan',
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		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'counselplain' => '',
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		'court' => 'Orissa',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
		'sub' => 'Criminal;Property',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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			'id' => '536066',
			'acts' => '',
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			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'counselplain' => '',
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			'court' => 'Orissa',
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			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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$title_for_layout = 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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2. The facts as narrated in the application are as follows:

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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009CriLJ4676',
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			'respondent' => 'Udayanath Pradhan',
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		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
		'sub' => 'Criminal;Property',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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$title_for_layout = 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:

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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009CriLJ4676',
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			'respondent' => 'Udayanath Pradhan',
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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			'id' => '536066',
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			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Ram Kishan Khetan and ors.',
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		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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		'court' => 'Orissa',
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		'decidedon' => '2009-08-21',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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(b) If he decides that none of the parties was in possession on the date of preliminary order, or

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			'appellant' => 'Ram Kishan Khetan and ors.',
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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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			'court' => 'Orissa',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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$title_for_layout = 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2009CriLJ4676',
			'ratiodecidendi' => '',
			'respondent' => 'Udayanath Pradhan',
			'sub' => 'Criminal;Property',
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
		'sub' => 'Criminal;Property',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'favorof' => null,
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Ram Kishan Khetan and ors.',
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		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).

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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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$title_for_layout = 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2009CriLJ4676',
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			'respondent' => 'Udayanath Pradhan',
			'sub' => 'Criminal;Property',
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		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
		'sub' => 'Criminal;Property',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'favorof' => null,
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Ram Kishan Khetan and ors.',
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		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
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		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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		'counselplain' => '',
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		'court' => 'Orissa',
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		'decidedon' => '2009-08-21',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.

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			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
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		'counselplain' => '',
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		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
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		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '2009CriLJ4676',
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			'respondent' => 'Udayanath Pradhan',
			'sub' => 'Criminal;Property',
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		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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		'pubs' => '2009CriLJ4676',
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		'respondent' => 'Udayanath Pradhan',
		'sub' => 'Criminal;Property',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
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In the result, the Criminal Misc. Case is allowed.

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	'title_for_layout' => 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '536066',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Ram Kishan Khetan and ors.',
			'authreffered' => '',
			'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
			'caseanalysis' => null,
			'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '2009-08-21',
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			'judge' => ' Kumari Sanju Panda, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Kumari Sanju Panda, J.</p><p style="text-align: justify;">1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">2. The facts as narrated in the application are as follows:</p><p style="text-align: justify;">The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p style="text-align: justify;">3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p style="text-align: justify;">4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p style="text-align: justify;">(a) If it is a case of emergency, or</p><p style="text-align: justify;">(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p style="text-align: justify;">(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p style="text-align: justify;">None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p style="text-align: justify;">5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p style="text-align: justify;">6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p style="text-align: justify;">7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p style="text-align: justify;">8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p style="text-align: justify;">9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p style="text-align: justify;">In the result, the Criminal Misc. Case is allowed.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'respondent' => 'Udayanath Pradhan',
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$title_for_layout = 'Ram Kishan Khetan and ors Vs Udayanath Pradhan - Citation 536066 - Court Judgment | '
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	'Judgement' => array(
		'id' => '536066',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Ram Kishan Khetan and ors.',
		'authreffered' => '',
		'casename' => 'Ram Kishan Khetan and ors. Vs. Udayanath Pradhan',
		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate.',
		'caseanalysis' => null,
		'casesref' => '(Nityananda Khamari and Ors. v. Rangadhar Khamari;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '2009-08-21',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Kumari Sanju Panda, J.',
		'judgement' => 'ORDER<p>Kumari Sanju Panda, J.</p><p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>2. The facts as narrated in the application are as follows:</p><p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.</p><p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.</p><p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:</p><p>(a) If it is a case of emergency, or</p><p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or</p><p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.</p><p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.</p><p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).</p><p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.</p><p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.</p><p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.</p><p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.</p><p>In the result, the Criminal Misc. Case is allowed.<p></p><p>',
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	(int) 0 => 'ORDER<p>Kumari Sanju Panda, J.',
	(int) 1 => '<p>1. This Criminal Misc. Case has been filed by the petitioners under Section 482, Cr. P.C. challenging the order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 2 => '<p>2. The facts as narrated in the application are as follows:',
	(int) 3 => '<p>The present petitioners are the second party members in a proceeding under Section 145, Cr. P.C. They were in possession of the disputed land total measuring Ac. O.560 decs, in Plot Nos. 1339 and 1340 (part plots) under M. S. Khata No. 386 in Mouza Jharsuguda Town, Unit No. 7, Dist-Sambalpur. Said land originally belonged to an ex-intermediary, namely, Lalit Mohan Shankar Deo and was recorded as Bhogra land. The said ex-intermediary inducted one Govinda Chandra Pattnaik as tenant and executed a permanent lease in his favour. The lessee got rent fixed in respect of MS Plot No. 1340 corresponding to HS Plot No. 3057 measuring total Ac. 0.56 dec. of land. The lessee Govinda Chandra Pattnaik after getting the rent fixed in his favour by virtue of registered sale deed No. 4398/1965 dated 9-8-1965 alienated the lease land in the name of one Srilal Khetan. The ROR reflected such transaction. Thereafter, Srilal Khetan got his name recorded in the Major Settlement operation and patta was issued in his favour in respect of MS Khata No. 386, Plot Nos. 1339 and 1340 with an area of Ac. 0.420 and Ac. 0.140 respectively total Ac. 0.560 decs, and was regularly paying rent to the Jharsuguda Municipality and obtaining receipts thereof. His properties were partitioned by virtue of the registered deed of partition No. 1096/1993 dated 6-7-1993. The aforesaid plots having Ac. 0.56 dec. were divided into two equal shares. Northern part of Ac. 0-28 dec. fell to the share of Shankar Lal Khetan and the West Southern part of Ac. 0.28 dec. was allotted to Ram Kishan Khetan, the present petitioner No. 1 vide Annexure-10. On the basis of such partition, Ram Kishan by virtue of a mutation case got his name mutated in the revenue Record of Rights, obtained a separate ROR bearing Khata No. 466/292,vide Annexure-11 and has been paying rent and tax regularly to the authorities and over the said plot the present petitioners have installed a Chuda Mill which is running till date.',
	(int) 4 => '<p>3. While the matter stood thus, the present opposite party as first party member initiated a proceeding under Section 145, Cr. P.C. in Criminal Misc. Case No. 186 of 2008 before the learned Executive Magistrate, Jharsuguda. It was his case that Govinda Chandra Pattanaik was the recorded owner of HS Plot No. 3057 measuring Ac. 0.20 dec. and the said land was mortgaged with the Co-operative Society. In the Execution Proceeding No. 10 of 1970-71, one Gopi Kishan Sharma purchased the said Ac. 0.20 dec. of land along with plot from the Asst. Registrar, Co-operative Society, Sambalpur and got delivery of possession. Thereafter he sold the said land total measuring Ac. 0.140 decs, in MS Plot No. 1340 under MS Khata No. 386 corresponding to HS Plot No. 3057 to one Suresh Kumar Mishra vide registered sale deed No. 556 dated 6-4-1995. Suresh Kumar Mishra in his turn, sold the land in favour of the present opposite party (first party member-Udayanath Pradhan) by virtue of the registered sale deed No. 609 dated 8-4-2002. As the present petitioners raised construction over the said plot, apprehending breach of peace, the opposite parry filed an application before the Executive Magistrate, Jharsuguda with a prayer to initiate a proceeding under Section 145(1), Cr. P.C. and attach the land under Section 146(1), Cr. P.C. in order to prevent serious apprehension of breach of peace between the parties for the end of justice. In the said application, the Schedule of Land was described as 'MS Plot No. 1340 area Ac. 0.140 dec. of MS Khata No. 386 of Mouza Jharsuguda Town Unit No. 7, Sarbahal, previously the aforesaid plot was HS Plot No. 3057 area of 0.20 dec. of HS Plot No. 1, Mouza-Jharsuguda'. The learned Executive Magistrate received the application and directed to initiate a proceeding under Section 145(1), Cr. P.C. Thereafter, without recording any subjective satisfaction as required under Section 146(1) of the Cr. P.C. in a mechanical manner he passed an order for attachment of the case land without indicating the details of the property said to be attached.',
	(int) 5 => '<p>4. Learned Counsel for the petitioners submitted that before issuing the order of attachment, the learned Executive Magistrate should have considered the pre-requisite conditions of Section 146, Cr. P.C. which are as follows:',
	(int) 6 => '<p>(a) If it is a case of emergency, or',
	(int) 7 => '<p>(b) If he decides that none of the parties was in possession on the date of preliminary order, or',
	(int) 8 => '<p>(c) And if he is unable to satisfy himself as to which of the party was in possession over the case land.',
	(int) 9 => '<p>None of the conditions was satisfied and no reason was assigned by the learned Executive Magistrate before issuing an order of attachment under Section 146(1), Cr. P.C. Therefore, after receiving notice in the said proceeding, the present petitioners as second party in members filed their show-cause stating the above facts as well as filed the revision case before the learned Additional Sessions Judge challenging the order of the learned Executive Magistrate. The said revision was dismissed as it was filed against an interlocutory order. Learned Counsel for the petitioners further submitted that the petitioners have already installed the Chuda Mill over the disputed land and the said Mill is in running condition. By virtue of the order passed by the learned Executive Magistrate, a third party has tried to take possession of the disputed land and the petitioners are facing a situation for closure of the Chuda Mill. Therefore, they have invoked the jurisdiction of this Court under Section 482, Cr. P.C. for the end of justice as they are facing irreparable loss. This Court on 25-2-2009 granted an interim order of status-quo in Misc. Case No. 434 of 2009.',
	(int) 10 => '<p>5. Learned Counsel for the opposite party submitted that the proceeding is at its initial stage and the petitioners could wait for the final order to be passed by the Executive Magistrate as they have already filed their show-cause. Since the learned Executive Magistrate has not yet passed any final order, the application under Section 482, Cr. P.C. is not maintainable in such circumstances. He further submitted that a Court can initiate a proceeding under Section 145, Cr. P.C. and simultaneously pass an order of attachment of the disputed land. Therefore, the impugned order does not warrant any interference by this Court. In support of his contention, he has cited the decision reported in 1989 ILR 556 (Rabinarayan Naik v. Dambarudhar Naik and Ors.).',
	(int) 11 => '<p>6. From the above submissions made by both the counsel and on perusal of the records, it transpires that the learned Executive Magistrate passed an order under Section 145(1), Cr. P.C. and also an order of attachment under Section 146(1), Cr. P.C. on the mere allegation of the Power of Attorney holder of the first party member without calling for a report from the Police and the R. J. regarding possession or apprehension of breach of peace. In Rabinarayan Naik's case (supra), it has been held that whether there is existence of apprehension of breach of peace is a matter which depends upon the subjective satisfaction of the Executive Magistrate and there is no doubt that this is the settled principle of law. If he satisfies himself that there is an apprehension of breach of peace, he has to restrain both the parties. Thereafter hearing both the parties, he has to pass further orders in accordance with law.',
	(int) 12 => '<p>7. This Court in a decision reported in : 1998 (II) OLR 625-(Nityananda Khamari and Ors. v. Rangadhar Khamari) was held that the provision in Section 146, Cr. P.C. is a corollary to Section 145, Cr. P.C. The Executive Magistrate is empowered under Section 146(1), Cr. P.C. to attach the subject to dispute in three type of cases, namely, (i) if it is a case of emergency, or (ii) if he decides that none of the parties was in such possession on the date of preliminary order or (iii) if he is unable to satisfy himself as to which of them was in such possession of the subject of dispute. It is apparent on the facts and circumstances in the present case that the impugned order was not passed by resorting to the second and third sequence inasmuch as learned Magistrate has not yet taken of the enquiry to decide the factum of possession.',
	(int) 13 => '<p>8. In view of the above position of law, the learned Executive Magistrate has to consider the above three circumstances and satisfy him before passing an order under Section 146(1), Cr. P.C. In the present case, it appears from the record that the learned Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of the proceeding under Section 145(1), Cr. P.C. but he has not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Therefore, the impugned order relating to attachment under Section 146(1), Cr. P.C. is neither backed by fact or reasons nor provision based upon the law. Hence, the impugned orders are not sustainable in the eye of law.',
	(int) 14 => '<p>9. Therefore, this Court in exercise of the jurisdiction under Section 482, Cr. P.C. set aside the impugned order dated 17-4-2008 passed by the learned Executive Magistrate, Jharsuguda in CMC No. 186 of 2008.',
	(int) 15 => '<p>In the result, the Criminal Misc. Case is allowed.<p>',
	(int) 16 => '<p>'
)
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Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109