In this case a rule was obtained calling on the District Magistrate and opposite party to shew cause why an order made under sec. 145, Cr. P.C, should not be set aside as made without jurisdiction. The dispute which gave rise to these proceedings relates to the collection of toll at a hât which is alleged to be situated on the boundaries of the Burdhan and Tagore estates, the contention of the Burdhan zemindar being that each party was entitled to take the toils in so much of the market as lay in his own zemindari, and the contention of the Tagore zemindar being that each party was entitled to take 4 the tolls of the entire market. There being a likelihood of a breach of the peace proceedings under sec. 145 were taken, the Receiver of the Tagore estate and others being made first party, and the zemindar of the Burdhan estate and others being the second party and an order was made declaring the second party to be in possession and ordering the first party not to disturb such possession.
In support of the rule to set aside the order three objections are taken: (1) There is no jurisdiction to make such an order against the Receiver.
(2) The police-report is insufficient.
(3) The first and second party are in joint possession of the hât and so proceedings cannot he had under sec. 145.
The second and third points can be briefly disposed of.
As to the police-report it is true that the expression used in it by the reporting officer is “there is a possibility of the breach of the peace.” It is argued that this is insufficient, but when the whole report is read it is found that the Inspector gives a very explicit account of the quarrel, and states facts which shew that there was a likelihood of a breach of the peace.
This objection therefore to the order fails.
We do not think there is any foundation for the third point, viz., that the parties were in joint possession. One party was alleging an exclusive right to collect the entire toll from one partitioned half of the market, the other party denied this right under these circumstances. We see no ground for saying that proceedings under sec. 145 could not be had.
The remaining point which was taken, viz., that the Receiver of the High Court could not be made a party to these proceedings simply in his capacity of Receiver, is more important and more substantial.
In support of the rule it is argued that the Receiver is made a party not because he has, as an individual, interested himself in a dispute likely to cause a breach of the peace but merely in his capacity of Receiver that the possession of the Receiver, is the possession of the Court whose officer he is, and that the Courts will not tolerate an interference with its officer.
The Advocate-General in showing cause against the rule replied that the objection that the proceedings could not be taken against the Receiver, was not taken before the Magistrate and that to hold that the Receiver is excepted from the operation of sec. 145 will be to read into the statute an exception which it does not contain. The latter of these two arguments we do not think well founded. The Crown, for example, is not expressly excepted but it could hardly be said that the Crown was liable to be made a party.
The former argument has more weight. We agree that the Receiver ought to have objected that he was not a party concerned in the dispute and to have refused to take any step from which it could be said he had submitted himself to the jurisdiction of the Magistrate, but we do not think his failure to take that course precludes the Court from setting aside the order against him, if we should be of opinion that such order could not be made.
When a Receiver is appointed by the Court, his possession is the possession of the Court, and he cannot be interfered with except with the leave of the Court. See Ex parti Cochrane.
The Receiver can neither sue nor be sued without the leave of the Court. See Mitter v. Ram Ranjan Chachravarti. He is the officer through whom the Court exercises its powers of management. In our opinion such an officer cannot be correctly described as a “party interested in a dispute likely to cause a breach of the peace.”
But even if the officer of the Court could be so described, we think there would be no jurisdiction in the Magistrate to make any order on him under sec. 145 without the sanction of the Court. The order directs that the Receiver shall not disturb the possession of the second party, in other words the Magistrate is assuming a jurisdiction to interfere with the officer of this Court as such without the sanction of this Court and it is well settled law that the Court will not without its leave permit its officer to be interfered with. See Russel v. East Anglian Railway Co. and Ames v. Trustees of Birkenhead Docks
For these reasons the order under sec. 145 must be set aside.
The rule is made absolute.
A.N.C
Rule made absolute.