MALAMSINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition under Section 482, Cr. P. C. has arisen in the following circumstances:

(2.) HAMIR Singh claimed that he was an adopted son of Ajit Singh and he claimed the aforesaid land to be entirely his even to the exclusion of Kushal Singh. Entries in the settlement and revenue record from the year Samvat 2013 until 2nd July, 1974, were also in his name. Khasra No. 229 was mortgaged by Ajit Singh to one Aam Singh on 30-11-67 for Rs. 1,044/- by an unregistered deed. Hamir Singh filed a complaint under Section 145, Cr. P. C. and also prayed for attachment on the basis of the deeds of adoption and mortgage as aforesaid.

(3.) IT appears that the learned Sub-Divisional Magistrate, Jodhpur made the preliminary order and the order of attachment on 22-7-74. The learned Magistrate directed the S. H. O. , Shergarh to take possession of the land and the standing crop. The petitioners filed a revision against this order in the Court of Session, Jodhpur. The learned Addl. Sessions Judge by his order dated 18-4-75 dismissed the revision petition holding that the order was an interlocutory one. The learned Judge observed that the learned Commentators of Dr. Nandlal's New Code of Criminal Procedure, 1973, have observed at page 908 of Volume I (IInd Edition 1974) that an order under Section 146, Cr. P. C. 1973 has none of the attributes of finality. When the subject of dispute is attached or placed in the custody of a receiver, he is custodia legis and his possession enures to the benefit of the party who is ultimately successful. Referring to the provisions of Order 39, C. P. C. the learned Judge was of the view that the order to appoint a receiver is not a final decision. If an interpretation otherwise were accepted, then, clause (a) of Sub-section (6) to Section 145, Cr. P. C. would become redundant in cases in which an attachment has been effected. Aggrieved by this order, the present petition has been filed.