BADRI PRAKASH SONI versus PRAHALAD SONI AND ORS.

Citation: [1994] SUPP. 3 S.C.R. 100 · Decided: 05-09-1994 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Disposed off

Judgment (excerpt)

A 
BADRI PRAKASH SONI 
v. 
PRAHALAD SONI AND·;ORS. 
SEPTEMBER 5, 1994 
~· 
B 
[K. RAMASWAMY AND N. VENKATACHAL\ JJ.) 
Cod,e .of Criminal Procedure, 1973: S.145(2)-l'ossession of proper-
ty-Executive Magistrate unable to decide--Passing order attaching properties 
. and directing parties to approac.h the Civil Court to establish their 
c rights-Validity of-Directions issued to Senior Sub-Judge before whom ap-
peal is pending in the matter-Smooth running of the factories fonning part 
of the property-Directions issued. 
The possession of certai~ property was in dispute and proceedings 
Were initiated under S. 145(2) Cr. P.C. Unable to decide as to who was in 
' 
c:' 
D possession of the disputed property, the Executive Milgistrate passed an 
order attaching the properties and directing the parties to go to the Civil 
Court to establish their rights. When the said order was passed, a civil 
suit was pending before the Sub-Judge. Therefore, the High Court held 
that the Magistrate should have awaited the decision in the suit. The 
E present appeal is against the said order of the High Court. The operation 
of the High Court's order was stayed by this _Court. 
During the tendency of the appeal, the sub-Judge dismissed the suit 
and the appeal. filed by the respondent is pending before the Senior 
Sub-Judge. 
F 
Disposing of the appeal, this Court 
HELD : 1. In view of the fact that the Magistrate has stated that he 
was not in a position to decide as to which of the contesting parties are .. 
in possession of the disputed property, the _dispute shall ht; decided by th~. 
G Senior Sub-judge pending in appeal before him. [103·C] 
2. In the interest of the utilisation of the Cork Spliting Machine( Ger· 
~ 
man Make) and smooth running of the factories during the pendency of 
the appeal, it is directed that: (103-D] 
H 
(a) The respondent is at liberty to continue to utilise the machinery 
100 
B.P. SONI v. PRAHAIAD SONI 
101 
in disputed property and run the factory. (103-D] 
-
t'b) Mr. Rakesh Kumar, Advocate practising in this Court is ap· 
pointed as an Advocate Commissioner. He should after giving a notice to 
A 
the counsel for the parties, make immediate inspection of the factory. The 
Executive Magistrate is directed to open the seals put on the disputed 
property. The Advocate-Commissioner with the Assistance of the expert B 
Engineer or Valuer shall assess the condition of the machinery and also 
its value. He should also make an inventory of the machinery existing 
outside the _factory. He would submit a report in that behalf to the Senior 
Sub-Judge. He should also take the signature of counsel for the parties 
before submitting the report to the Senior Subordinate Judge. (103-E-F] 
C 
(c) A sum of Rs. 10,000 is faxed initially as Commissioner's fees 
subject io his ~laiming any additional amount as his fees and of the expert 
Engineer or Valuer, which will be determined by the Senior Sub Judge after 
submission of his report. (103-G] 
(d) As soon as the report is submitted by him, the Senior Sub Judge 
should direct the Executive Magistrate to lift the attachment made in 
respect of the disputed property and permit the respondent to run the 
factory. (103-H; 104-A] 
D 
E 
(e) The respondent shall not remove the machinery within the dis-
puted property as well as the machinery kept outside the factory. From the 
date on which the respondent starts running the factory, he shall for every 
working day deposit to the credit of the appellant a sum of Rs. 20,000. The 
Senior Subordinate Judge is directed to dispose of the appeal as ex-
peditiously as possible within a period of six weeks from the date of receipt F 
of this order. If the respondent before the Senior Subordinate Judge suc· 
ceeding in his contention and on the Court finding that he is the owner, 
then he will be entitled to withdraw the amount deposited by the respondent 
herein. (104-A·B·CJ 
(f) In the event of the findings going against the respondent herein G 
and if any damage to the machinery is caused contrary to noted conditions 
by the Commissioner, after taking delivery of the possession the appellant 
herein is entitled to claim damages caused to the machinery. The Commis-
sioner shall give his report within a week to the Senior Subordinate Judge. 
[104-D] H 
102 
SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. 
A 
(g) With the assistance of the parties, it is open to the Commissioner 
to take photographs of the existing machinery and put identifica

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