Section 146 is a corollary to Section 145. The word ‘then’ in Section 146(1) means the point of time at which possession becomes material. The object of attachment is to keep the property in custodia legis so as to prevent the disputant from causing a breach of peace while attempting to obtain actual possession of the property.
A composite order under Section 145(1) and under Section 146(1) is illegal. However, though on reading of Section 146(1), it appears that an order of attachment on the ground of emergency can be made ex parte after making the preliminary order under Section 145(1) if the magistrate exercises his independent mind on both the questions separately and passes a composite order and does not record separate orders one after another, it would not be illegal.
It is the duty of the magistrate, before taking proceedings under Section 146(1), to take evidence and inquiry in order to ascertain, if possible, who was in possession.
Appointment of receiver:
As per Section 146(2) of the Code of Criminal Procedure, when the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil Court, make such arrangements as he considers proper for looking after the property or, if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908.
However, in the event of a receiver being subsequently appointed in relation to the subject of dispute by any civil Court, the Magistrate—
(a) Shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the civil Court and shall thereafter discharge the receiver appointed by him;
(b) May make such other incidental or consequential orders as may be just.
A magistrate is entitled to appoint a receiver under section 146(2) of the Code only after the termination of .the inquiry as to possession conducted under Section 145(4). A receiver appointed under Section 146(2) of the Code has all the powers of a receiver appointed under the Code of Civil Procedure subject to the control of the magistrate appointing him. When none of the matters required to be considered before appointment of the receiver were considered, the order of the magistrate appointing the receiver must be held to be illegal. It is also illegal when the appointment is made without assigning any reason whatsoever.
When the petitioner already obtained temporary injunction against the opposite parties from civil Court, the order of the Magistrate appointing the receiver after the order, is liable to be quashed, but the proceeding under Section 145 will continue.