SODA SOURA Vs. SYAMA BISOI

JUDGEMENT

(1.) IN spite of issue of notice as per the order No. 7, dated 2.3.1998, the opposite party members have not appeared. Learned counsel for the petitioners is present and ready to argue.

(2.) HEARD .

(3.) REFERRING to the order of attachment and appointment of receiver, learned counsel for the petitioners argue that though in accordance with the provision under Sub -sections (1) and (2) of Section 146, Cr.P.C. the S.D.M. was competent to attach the subject matter of dispute and to appoint receiver but he could not have done so in the present case in the absence of a finding that it was a case of emergency or that learned Magistrate was unable to decide which of the parties was in possession on the date of preliminary order. Accordingly, he prays to set aside the order of attachment and appointment of receiver. It is true that in the case at hand, learned Magistrate after passing the preliminary order has not recorded a finding that it was case of emergency so as to attach the disputed land. To that extent, the impugned, order appears to be incorrect. However, when the police report indicated about dispute between the parties relating to growing up the crops, learned Magistrate when found standing crop was there in the disputed case land, he was competent enough to pass an order for appointment of receiver with respect to the standing crop in accordance with the provisions in Sub - section (8) of Section 145, Cr.P.C. Simply because learned Magistrate has not noted the said provision in the impugned order, that does not render the order of appointment of receiver for the standing crop illegal or perverse. Similarly, mentioning in order that receiver was appointed under Section 146(1), Cr.P.C, does not make that order illegal because of two factors viz., (i) that Sub -section (1) of Section 146, Cr.P.C. does not provide for appointment of receiver and (ii) use of wrong nomenclature does not vitiate an order. Therefore, in true sense the aforesaid order appointing receiver for the standing crop is an order under Sub -section (8) of Section 145, Cr.P.C. and therefore, that order is not liable to be interfered with at this stage i.e., after lapse of three years.