Ramratna Singh, J.:— Both these applications, which are directed against orders under section 145 of the Cr PC, were heard together, as common questions of law arise therein. These questions appear in the following observations of a learned Single Judge of this Court while referring Criminal Revision No. 1343 to a Division Bench:

“Article 131 of the new Limitation Act, which came into force on the 1st January, 1964, lays down that the period for an application to any Court for the exercise of its powers of revision under the Code of Criminal Procedure is 90 days from the date of the decree or sentence sought to be revised. A point has been raised that this period of 90 days will begin to run from the date of the order of the Sessions Judge refusing to make a reference to the High Court in his revisional jurisdiction. A Bench decision of this Court in Sahdev Mandal v. Honga Murmu, Cr. No. 1018 of 1965. D/- 13-9-1966: (AIR 1967 Pat. 223) has observed that the period of limitation could not be counted from the date of the order of the Sessions Judge refusing to make a reference to the High Court. That observation, however, is obiter, because in that case this point was not required to be decided.

2. Another point that has been raised is that according to the long standing practice of this Court, the petitioner had to go to the Sessions Judge for making a reference to the High Court and was not allowed to come direct to this Court. The unreported decision of this Court, referred to above, has laid down that it is not necessary to go to the Sessions Judge for making a reference to the High Court. That decision, however, was given on a question being raised as to whether a criminal revision application filed direct in this Court can be maintained. The question as in what would happen if a litigant has gone first to the Sessions Judge, according to the long standing practice of this Court was not for consideration in this case Mr. Jaleshwar Prasad, appealing for the petitioner, has submitted that there are a good number of cases which had been filed, according to the long standing practice of this Court but now would be barred by time on account of Article 131 of the Limitation Act lie has therefore, prayed that this case should be referred to a Division Bench for an authoritative decision on the point whether this Court can interfere with an order, in its revisional jurisdiction if there is any merit in the case even though the application is barred by time according to Article 131 of the Limitation Act”

3. Criminal Revision No. 906 was referred to a division bench for hearing along with Criminal Revision No. 1343.

4. In the aforesaid unreported decision in Cri. Rev. No. 1018 of 1965 (Pat.) decided by myself and Anwar Ahmad, J. on the 13th September, 1966 (AIR 1967 Pat. 223) the petitioners had come directly to this Court, without following the usual practice of going to the Sessions Judge in the first instance, and the question then raised was whether their application in revision could be entertained, particularly in view of a decision of Mahapatra, J. in Abdul Sayeed Khan v. Jagarnath Nonia, 1965 B.L.J.R 427. In that case the petitioners had made an application in the first instance before the court of Sessions before the new Limitation Act commenced its operation. That application had been dismissed by the Additional Sessions Judge on the 30th April, 1964, and, thus more than ninety days had expired from the 26th September, 1963, the date of the order of the Sub-divisional Magistrate in the proceeding under section 145 of the Cr PC out of which the application in revision arose. Mahapatra, J. found that the impugned order of the Magistrate was neither legal nor correct, and therefore, it could not be sustained. But it was contended for the opposite parky that the application in revision to this court was not maintainable, because more than ninety days, which is the period prescribed by Article 131 of the new Limitation Act for making an application in revision under the Code of Criminal Procedure, had expired since the date of the Magistrate's order. His Lordship was of the view that this period of ninety days should be calculated with effect from the date of the Magistrate's order, but allowed the application with the following observations:

“After having found that the impugned older of the Magistrate was neither legal nor correct, it will be travesty of justice if I would decline to interfere in this case for the simple reason that the petitioner's application to this Court against the impugned order of the Magistrate was barred by time under the provisions of the new Limitation Act. The other course which could be followed is to set aside the order of the Additional Sessions Judge, dated the 30th April, 1964 and direct him to refer the case to this Court, but that would only lie a mere technical duplication which, in my view is not called for. I would prefer to act under Sections 435 and 439 of the Cr PC”.

5. In the unreported decision dated the 13th Sep. 1966. I agreed with Mahapatra, J. and held that the period of ninety days is to he counted from the date of the Magistrate's order and even though the practice of this court is not ordinarily, to entertain any application in revision, unless a party went in the first instance to the Court of Session, in view of the statutory period of limitation prescribed by the new Limitation Act a petitioner is not bound to approach the Court of Session before coming to this Court. It was therefore, held that the application made directly to this court was maintainable, and on merits the application was allowed II will, therefore, he noticed that in this case the question as to what would happen, if a party had gone in the first instance to the Sessions Judge, according to the long-standing practice of this Court, was not required to be considered, nor it was considered, as has been observed in the second paragraph of the order of reference quoted earlier. It will be noticed that in the first paragraph of this order it has been mentioned that the observation in the unreported decision that the period of limitation could not be counted from the date of the order of the Sessions Judge refusing to make a reference to the High Court was obiter, because in that case this point was not required to be decided. In paragraph 5 of the unreported decision, Mr. Sanyal, who ??? for the opposite party in order to meet the argument of Mr. Ghosal, learned advocate for the petitioners, submitted that the difficulty pointed out by Mr. Ghosal would not arise, because the period of limitation is to be counted from the date of the order of the Sessions Judge refusing to make a reference to this Court. On account of this argument of Mr. Sanyal we had to interpret the meaning of the words “the date of the order sought to be reyised” from which ninety days was fo be counted under Article 131 of the new Limitation Act: it was held that this period is to be counted from the date of Magistrate's order under section 115 and not from the date of the order of the court of session. We, therefore, asked Mr. Jaleshwar Prasad how the observation that the period of limitation could not he counted from the date of the order of the Sessions Judge could be said to be obiter; but in answer to this question he merely submitted that in the unreported decision it was not decided as to what would happen, if a litigant had actually gone first to the Sessions Judge.

6. It was conceded that before the commencement of the new Limitation Act, i.e, before the 1st January, 1964, though no period of limitation had been prescribed by or under any law in respect of an application for revision under the Code of Criminal Procedure, some period was fixed according to the practice of the High Courts — sixty days in some High Courts and ninety day in others. In the Patna High Court, the period so fixed was sixty days. For the purpose of a revision, sections 435 to 439 of the Code are relevant. According to section 435, the High Court or any Sessions Judge or District Magistrate may call for and examine the record of any proceeding before am inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order of the inferior court. Under section 436, the High Court or the Sessions Judge may on examining any record under section 435 or otherwise, direct the District Magistrate or any of his subordinate Magistrate to make further enquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged. Section 437 lays down that, on examining the record of any case under section 435 or otherwise, the Sessions Judge or District Magistrate may order a person to be committed for trial who has been discharged in a case triable exclusively by a court of session. Section 438 empowers the Sessions Judge and the District Magistrate to make a report (or reference) to the High Court in case where either of them thinks it fit to do so, on examining under section 435 or otherwise the record of any proceeding, with recommendation that a sentence or an order be reversed. Under section 439, in the case of any proceeding the record of (i) which has been called for by itself or (ii) which has been reported by the Sessions Judge or District Magistrate for orders, or (iii) which otherwise comes to its knowledge, the High Court may, in its discretion, interfere with an order of an inferior court. Sections 486 to 439 must, however, be read along with and subject to the provisions of section 435, which contains the grounds for interference with an order of an inferior court. It will be noticed that the powders to be exercised under these sections are merely discretionary; and a party has no right in respect of these discretionary powers. But the party can invoke the High court or the Sessions Judge or the District Magistrate as the case may be, to exercise its or his discretionary power. He can invoke thin power apparently through an application; and though formerly the re was no statutory time limit for making such an application, Article 131 of the new Limitation Act imposes a time-limit of ninety days from the date of the order “sought to be revised”.

7. The first question for consideration is whether this statutory period of ninety days should be counted from the date of the Magistrate's order, or from the date of the order of the Sessions Judge or the District Magistrate, ss the ??? be. It is manifest that, in the case of an application in revision made direct to the High Court, challenging the order of Magistrate under section 145 of the Cr PC, the order sought to be revised is the order of the Magistrate. But what would be the position in a case where an application has been filed in the first instance before the Sessions Judge (or the District Magistrate) and he has declined to make a report to the High Court under section 438? This question assumes importance on account of the omission, apparently by oversight, on the part of the Parliament to amend section 14 of the Limitation Act so as to provide for exclusion of the time taken in the bona fide prosecution of a criminal proceeding as well. We have to consider whether, under the law as it stands at present, the order sought to be revised by the High Court is the order of (lie Sessions Judge refusing to report to the High Court or the order of the trying Magistrate in other words, does the applicant want the order of the Magistrate or the order of the Sessions Judge to be set aside by the High Court that is by which of the two orders is he adversely affected? Section 145(6) lays down that, if the Magistrate decides that one of the parties was or should under the second proviso in sub-section (4) he treated as being, in possession of the land in dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and when he proceeds under the second proviso to sub-section (4). may restore to possession the party forcibly and wrongfully dipossessed.

8. Section 146 deals with a case, where the Magistrate is unable to decide as to which of he parties was in possession on the relevant date: and in such a case he has to refer the matter to the appropriate civil court, which has to make an enquiry into the matter and transmit its finding to the Magistrate who shall, on receipt of the finding, proceed to dispose of the proceeding under section 145 in conformity with the decision of the civil Court. In other words, the Magistrate has to declare the possession of the party in whose favour the Civil Court gives its finding. It is, therefore, manifest that the party against whom an order is made by the Magistrate on the question of possession either on his own finding or on the basis of the finding of the civil court is really affected by the Magistrate's order, in as much as he can get back possession of the property only, if he succeeds in a civil suit against the order of the Magistrate. The Sessions Judge or the District Magistrate, under section 438, can merely submit a report for the orders of the High Court with the recommendation that the Magistrate's order be reversed or altered. In either case, therefore, the order sought to be revised by the High Court would be the order of the Magistrate. It was, of course, argued that a party is aggrieved also, when the Sessions Judge refuses to make a report to the High Court under section 438, and, therefore, where an application in revision is filed before the High Court, the order sought to be revised is the order of the Sessions Judge refusing to make a report; but such an argument is not tenable, because, even if the High Court be of the opinion that the Sessions Judge ought to have made a report under section 438, it can merely set aside the order of the Sessions Judge refusing to make a report and ask him to submit such a report.

9. As was observed by me in the aforesaid unreported decision, such a cumbrous procedure could not have been contemplated by the legislature. It is true that, in exercise of its wide powers under section 439, the High Court may, instead of asking the Sessions Judge to make a report under section 438, modify or reverse the order of the Magistrate; but, in that case, the High Court will be exercising its powers, not on the application of the party invoking the powers of the High Court, but on account of the fact, that an illegal or improper order of the Magistrate has ‘otherwise’ come to its knowledge — the third contingency contemplated by section 439. Strictly speaking, in such a contingency, the party's application is rejected and the High Court acts suo motu after starting another revision proceeding, by implication. If this interpretation of the exercise of the wide powers of the High Court be correct — and there should be no doubt about its correctness — can it be argued in the alternative, that the order of the Magistrate and the order of the Sessions Judge are both sought to be raised by an applicant in the High Court? If the answer to this alternative argument be in the affirmative the result will be that ninety days will be counted from the date of each of the two orders and, in a case where the application has been filed after the expiry of ninety days (plus the time taken in obtaining a copy) from the Magistrate's order, it is time-barred in respect of that order, though it may be in time in respect of the Sessions Judge's order. But such an anomalous situation could not have been contemplated by the Parliament. This anomaly can be overcome only if it be possible to hold that the Magistrate's order merges in the order of the Sessions Judge; but, in as much as the order of the Sessions Judge under section 438 is not a final order, there cannot be such a merger. My concluded opinion, therefore, is that the expression “order sought to be revised” occurring in Article 131 of the new Limitation Act refers to the order passed by the Magistrate under section 145.

10. This view is also supported by a bench decision of this Court in Kelu Patra v. Iswar Parida*, AIR 1929 Pat. 404. It was not disputed there that the order sought to be revised was the order of the Magistrate under section 145; but one of the arguments advanced was that sixty days — the period of limitation, according to the practice of this Court — should be counted from the date when the Sessions Judge refuses to make a reference under section 438. This argument was repelled by their Lordships with the following observations:—

“……It is a complete misapprehension that when an application is made to the Sessions Judge beyond or even within the period of sixty days from the decision impugned a further period of sixty days becomes available to the applicant from the date when the Sessions Judge refuses to make a reference under S. 438. The period of sixty days is intended to cover the proceedings of normal length before the Sessions Judge, and ordinarily will not be extended because the petitioner negligently or deliberately delayed to move the. Sessions Judge till the period had nearly expired. Least of all will it be extended when the motion was filed before him and refused on the same day. Where the Sessions Judge has issued notice and there is delay in his Court, each case will be considered on its own circumstances. But it is certain that the period of sixty days will not be extended by the period occupied in proceeding in this Court. Broadly, it is not allowable to delay in approaching the Sessions Judge who in our view ought to be moved within the period of appeal, thirty days at least and in all cases the petitioner must come to the High Court within a reasonable time of the order of the Sessions Judge, and ought to do so expeditiously”

11. It will, therefore, be noticed that, even when the period of limitation was not fixed by the statute, it was held that the period during which an application in revision was pending before the Sessions Judge could not be excluded for the purpose of computing the period of sixty days, which had to be counted from the date of the Magistrate's order. This bench decision has been followed by Single Judges of this court in several reported decisions (e.g Mt. Bee bankuer v. Maharaja of Chota Nagpur, AIR 1939 Pat. 320), which were referred to during the arguments: but it is not necessary to discuss them here, as they merely followed the bench decision. Neither Mr. Jaleshwar Prasad nor Mr. A.N Sahai could point out any decision in which the period spent by a party before the Sessions Judge or the District Magistrate was excluded, while computing the period of limitation, as fixed by the practice of this court or any other High Court. They did not cite any decision either to show that in such a case the order of the Sessions Judge, and not that of the Magistrate, is to be revised by the High Court under section 439.

12. It was then argued that section 438 would become nugatory, if the order of the Magistrate under section 145 be deemed to be the order sought to be revised and every party dissatisfied with the order of the Magistrate will come directly to the High Court, instead of going in the first instance to the Sessions Judge nr the District Magistrate. There is, however, no question of section 438 becoming nugatory on account of the view that the period of ninety days fixed by Article 131 of the new Limitation Act should be counted from the date of the Magistrate's order (of course, excluding the time taken in obtaining copy of the order). Even before the commencement of the new Limitation Act, the legal position was the same with this difference that the period of limitation had been fixed by the practice of the court instead of the statutory provision. A party aggrieved by the Magistrate's order could, under the statute law always come direct to the High Court under section 439 of the Code, and it was only the practice of this court that made it obligatory on a party to go before the Sessions Judge in the first instance. Even then, it was held that, though it is not usual for the High Court to entertain applications in revision direct, they must, after they had been admitted be disposed of on merits (see Bihar Municipality v. Ranmandi Kuer, AIR 1941 Pat 548 following Chokat Ahir v. Suraj Singh, AIR 5940 Pat. 299, Abdul Matlab v. Nand Lal, AIR 1923 Cal 674 and Shailabala Devi…Applicant; v. Emperor…Opposite Party., AIR 1933 All 678 (FB). The reasons why the practice of seeing a party to go to the Sessions Judge in the first instance came into existence are summarised in the following observation of Sulaiman, C.J in AIR 1933 All 678 (FB)

“The third question is whether an application in revision should be entertained by the High Court when the matter has not first been taken to the District Magistrate or the Sessions Judge Obviously the High Court has full jurisdiction to entertain any such application even though the District Magistrate or the Sessions Judge has not been approached in the first instance. The jurisdiction is concurrent and there is nothing to prevent the High Court from entertaining an application direct and exercising its jurisdiction

At the same time it is quite clear that a practice has grown up in this Court to refuse to entertain applications direct, until the District Magistrate or the Sessions Judge has been approached. This practice is based largely on convenience, and seems to me to be sound. The District Magistrate or the Sessions Judge is on the spot and easily accessible and the record can be legally called for promptly without any loss of time and without the necessity of sending it through the post. The proceedings are also likely to be less expensive. The High Court is a superior Court and its time would not be unnecessarily spent in examining the record and in some cases even considering the evidence, when a subordinate court has already considered the matter and made his report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well known to the member of the bar in the Mofussil and in the High Court the accused would be advised to approach the subordinate Court forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the tatter can only report to the High Court and cannot themselves pass an order in favour of the accused. Many accused persons may therefore think it more expeditious and much cheaper to come up straight to the High Court. The High Court would then be flooded with such applications.

13. On these grounds it seems that a practice of a long standing has grown up under which the High Court does not ordinarily, entertain an application in revision unless the District Magistrate or the Sessions Judge has been moved first. Even keeping this practice in view, the Patna High Court thought that the period of sixty days would be sufficient to cover also the period spent by a party before the Sessions Judge, as will appear from the observations quoted earlier from the decision in the case of Kelu Patra, AIR 1929 Pat 404. There is, therefore, no force in the argument that section 438 would become nugatory, if the period of ninety days fixed by Article 131 of the new Limitation Act is counted from the date of the Magistrate's order. It is true that these days the Sessions Judges lake several months to dispose of applications in revision filed before them: but this may be due to the fact that the attention of the Sessions Judge; has not been drawn to the observations made in the case of Kelu Palra, AIR 1929 Pat 404 or on account of a large number of cases pending before them. The latter contingency cannot, however, stand in the way of the Sessions Judges giving first preference to the disposal of revision applications pending before them within a month or two from the dates when they are filed, provided a Sessions Judge is alert and prevents the parties from employing tactics to delay the disposal of such cases. In the aforesaid unreported decision dated the 13th Sept, 1966 (now reported in AIR 1967 Pat 223) it was held that a party aggrieved by the order of the Magistrate under section 145 may come direct in revision to the High Court, without going to the Sessions Judge in the first instance because so far, the Sessions Judges have not been disposing of revision applications quickly and their attention does not seem to have been drawn to the observations made in the case of Kelu Patra, AIR 1929 Pat 404.

14. In view of the foregoing discussions. I am definitely of the opinion that the period covered by the pendency of the revisional application before a Sessions Judge cannot be added to the period of ninety days fixed by Article 131 of the new Limitation Act, according to which the prescribed period has to be counted from the date of the impugned order of the Magistrate.

15. A bench decision of the Calcutta High Court in Raj Chandra v. Emperor, AIR 1917 Cal 680 came to our notice during the arguments of the present case. After referring to the practice of the Calcutta High Court that the application in revision must be made within sixty days from the date of the order complained of, their Lordships posed the question whether in a case in which there had been an application to the Sessions Judge, the sixty days were to be counted from the refusal of the Sessions Judge to refer the matter to the High Court or whether the time was to be ascertained by counting the days from the date of the order complained of. As there was no definite practice of the Calcutta High Court upon this particular point, their Lordships laid down a practice to the effect that the sixty days shall be counted from the date of the conviction or the order complained of but the time which is occupied in prosecuting with diligence the application before the Sessions Judge and obtaining his decision should be added to the sixty days, just in the same way as the time necessary for obtaining copies no authority was shown to us to indicate any practice of the Patna High Court on this point; rather, the observation in the case of Kelu Patra, AIR 1929 Pat 404, gives an indication to the contrary. Moreover, in my opinion, a practice could be laid down in this respect, when a period of sixty days was fixed as the period of limitation from the date of the order sought to be revised by an earlier practice of the court; but, when the period of limitation has now been fixed by the statute, it is not possible to extend that period by a practice of the court to the effect that some period should be added to the statutory period on account of the pendency of the application in revision in the first instance before the Sessions Judge.

16. In the alternative, it was contended on behalf of the petitioners that, inasmuch as the parties like the petitioners were misled by the practice of this Court even after the commencement of the new Limitation Act, and the delay in coming to this Court was caused on account of the pendency of their applications in revision before the Sessions Judge, the delay should be condoned; and for this purpose, in both the cases applications have been filed for condonation of the delay under section 5 of the Limitation Act Another argument was that once this Court has admitted an application in revision and called for the lower court records, this Court should decide the application in revision on merits in exercise of its wide powers under section 439 and the applications should not be dismissed on account of the fact that they were filed in this court after the expiry of the period fixed by the statute. There is force in these arguments. There can be no doubt that the period of limitation fixed by Article 131 of the new Limitation Act cannot affect the powers of the High Court under section 439, in a case where the record of the lower court has been called for by itself or where the illegality or impropriety committed by the lower court comes to the knowledge of the High Court otherwise than on a report from the Sessions Judge in P.K Mitra v. State of West Bengal, AIR 1959 SC 144 It was held that the revisional powers of the High Court vested in it by section 439 read with section 435 do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, Or abuse their powers vested in them by the Code; and whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case.

17. It was held by a bench of this court in the case of Kelu Patra, AIR 1929 Pat 404 that in exceptional circumstances an application in revision filed in this court may be considered even though it is filed after the expiry of the period of sixty days the period fixed by the practice of the court as the period of limitation. It was conceded that it is well settled by the decisions of all the High Courts that the powers of the High Court under Section 439 are very wide, and the High Court can at any stage, of its own motion, if it so desires and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them and pass suitable orders. There can be no doubt, therefore, that this court can under section 439 set aside or modify an order of inferior criminal courts, even though incorrectness, illegality or impropriety is brought to its notice after the expiry of ninety days prescribed for an application in revision by a private party in view of this finding, we have to see in the instant cases whether there are exceptional circumstances to justify the condonation of the delay and the examination of the impugned orders of the Magistrates concerned under section 145 on merits.

18. To sum up, my answers to the legal questions raised are these:

(i) The order sought to be revised, as Contemplated by Article 131 of the new Limitation Act, is the order of the Magistrate under section 145 of the Cr PC — not the order of the Sessions Judge or District Magistrate refusing to make a report under S. 438 — and therefore, an application in revision must be filed before the High Court within ninety days from the date of the Magistrate's order, excluding, of course, the time taken in obtaining relevant copies.

(ii) The period spent in prosecuting an application in revision before the Sessions Judge or District Magistrate cannot be excluded in computing the said period of ninety days, until section 14 of the Limitation Act is suitably amended by the Parliament

(iii) Even though the statutory period of limitation in respect of an application in revision has expired, the High Court may in exceptional circumstances interfere with the Magistrate's order in exercise of its wide power under section 439 of the Code: and this power will be exercised not on account of a party's application but suo motu on the ground that the Court feels that an illegal or improper order of the Magistrate has resulted in injustice.

(iv) Until the position regarding the pendency of revision applications before the Sessions Judges improves, so that such applications may be disposed of quickly by them, a party may, at his option, come to this court direct under section 439 read with section 435 of the Code. But whenever a party invokes the power of this court under section 439 of the Code after the expiry of the statutory period of limitation on account of the pendency of his application in revision before the Sessions Judge, the power to condone the delay under section 5 of the Limitation Act should be liberally exercised, provided that the applicant had been diligently and promptly prosecuting the case in the court below on account of the practice of this court that the party must go in the first instance to the Sessions Judge or the District Magistrate, as the case may be.

19. In Criminal Revision 906 of 1905, the impugned order of the Magistrate was passed on the 22nd September, 1964, and the application in revision was filed by the petitioner before the Sessions Judge on the 29th September, 1964, i.e within a week of the date of the impugned order, out of which five days were taken in obtaining a certified copy of the order of the Magistrate. The Additional Sessions Judge's order dismissing the application in revision was passed on the 24th June, 1965, and the application in revision in this court was filed on the 26th July, 1965, and the time faking in obtaining copy of the Additional Sessions Judge's order was four days. The petitioner in this case was very prompt in going to the Sessions Judge, but there was a delay of about 12 days in his coming to the High Court, apparently, because he was misled by the practice of this court. It is, therefore, a fit case for condonation of delay under section 5 of the Limitation Act, and the delay is accordingly condoned.

20. The first ground on which Mr. A.N Sahai challenged the order of the Magistrate was that the learned Magistrate could not legally rely on the report of the police and the report of the pleader commissioner which was sworn to by an affidavit, because there was no specific provision for a Magistrate to appoint a pleader commissioner to see the features or the land in a proceeding under section 145. But the order of the Magistrate and the written statement and the documents filed by the parties show that the features of the land, the whole of which each party claimed, was very much complicated and therefore, in the absence of any prohibitary provision, the Magistrate was justified in appointing a survey knowing pleader commissioner to measure the land and delineate the salient features thereof on a map with reference to the survey map and the changes in the features of the land since the preparation of the survey map. Both the police officers and the commissioner's reports were parts of the record of the magistrate, and therefore, he was justified in placing reliance on them, besides the affidavits regarding possession, written statements and other documents. This contention of Mr. Sahai, must, therefore, fail.

21. The next ground urged by Mr. Sahai was that the Magistrate had declared the possession of the opposite party on some land which was not claimed by them. Each party claimed the whole of survey plot no. 1110 before the Magistrate but on a consideration of all the materials before him he declared the possession of the petitioner over one-third of the plot and that of the opposite party over the remaining two-thirds. As the Magistrate has to give his decision under section 145 according to the possession of the parties, there was no illegality or impropriety in this order of his. Another argument of Mr. Sahai was that, while describing the area of plot no. 1110 over which the opposite party were in possession, the Magistrate declared their possession over portions of plots lilt and 1113 which they never claimed. The area of plot no. 1110 found to be in possession of the opposite party is described with reference to the map prepared by the pleader commission in paragraph 9 of the impugned order: and we find that small portions of plots 1111 and 1113 are also included in the description given by the Magistrate with reference to points X Y Z P in the pleader commissioner's map Mr. Katriar who appeared for the opposite party conceded that the Magistrate seems to have missed this fact by oversight and therefore, we find that the opposite party's possession shall be over that portion of plot no. 1110 which is covered by the description given in paragraph 9 of the impugned order, with reference to the map and the report of the pleader commissioner and any portion of plot 1111 and 1113 covered by the same shall be excluded and the order declaring the posession of the opposite party over such portion of plots 1111 and 1113, by implication, shall be set aside.

22. Then, there is a nala in a portion of plot no. 1110 which, according to the finding of the Magistrate, was constructed by the petitioner. But the learned Magistrate has not declared possession of any party over this nala. Mr. Katriar conceded that the possession of the petitioner over it may be declared by this court and to that extent the Magistrate's order may be modified; the possession of the petitioner over this nala is accordingly declared.

23. Subject to the aforesaid modification in the impugned order of the Magistrate, the application is dismissed.

24. In Criminal revision No. 1343 of 1965, the impugned order of the Magistrate was passed on the 17th September, 1964, when the civil courts were closed for the Puja vacation. The civil courts reopened on the 12th November, 1964 An application in revision was filed by the petitioner before the District Magistrate of Saran on the 11th November, 1964, On the 20th April, 1965, the District Magistrate ordered that the case might be transmitted to the Session Judge who actually received the record of the case on the 22nd May, 1965.

25. The Sessions Judge of Saran rejected the application in revision on the 27th July, 1965, and the application in revision before the High Court was filed on the 21st October, 1965. It appears from the order of the Sessions Judge that the District Magistrate of Saran was not in charge of the court of Session during, the relevant time, but he had been authorised by the Sessions Judge under section 17(4) of the Cr PC to entertain and dispose of urgent applications that might be filed during the annual vacation of the civil courts.

26. It was argued by Mr. Sachidanand that a Vacation Judge is appointed every year by the State Government on the recommendation of the High Court for each judgeship: and the application in revision ought to have been filed either before the Vacation Judge concerned or, on the re-opening of the civil courts before the permanent Sessions Judge. The Sessions Judge of Saran however, rightly entertained the application in revision transmitted to him by the District Magistrate of Saran as the petitioner had filed the same before the District Magistrate on account of a bona fide mistake. The petitioner could not be held responsible for the delay by the District Magistrate in transmitting the application in revision to the Sessions Judge as late as the 22nd May, 1965 In the circumstances, it is not possible to accept the argument of Mr. Sachidanand, who appeared for the opposite party, that the application should be deemed to have been filed before the Sessions Judge on that day. There was, therefore, no delay in filing the application before the Sessions Judge. But there was much delay in making the application in revision to this court after the final order of the Sessions Judge. The Sessions Judge's order is dated 27-7-1965 and the period from 3-8-1965 to 14-9-1965 was spent in obtaining copies of the orders of the Judge and the Magistrate. Still this application in revision was filed on 21-10-1965. In his petition under section 5 of the Limitation Act, it is said that, inasmuch as the application in revision was filed in this court well within ninety days of the date of the Sessions Judge's order, and, according to the practice and the law, as it stood at the time of filing the application, it was filed in time, particularly because the Stamp Reporter also reported that the application was in time. But it will be seen from the bench decision of this court in Kelu Patra's case, AIR 1929 Pat 404 that the period of limitation prescribed by the practice of this Court is sixty days—not ninety days—from the date of Magistrate's order. It appears, however, that since the commencement of the new Limitation Act, the Stamp Reporter thought that the period of limitation is ninety days from the last order of the court below: but there is no authority to support this view of the Stamp Reporter. The benefit of this practice started on the basis of the reports of the Stamp Reporter since 1964 must go to the petitioner; and this is a sufficient cause for condonation of the delay under section 5 of the Limitation Act. The delay is, therefore, condoned. Now we have to consider the case on merits.

(The rest of the judgment is not material for this report).

GK/JHS/D.V.C

27. Revision dismissed.