JUDGMENT 1. - This revision petition is by party No.1 in proceedings u/s 145, Cr. P. C. The learned Magistrate, after holding an enquiry, declared the possession of party (1) on the land in dispute on the date of the preliminary order as well as within two months prior to it. Party (2), who are non-petitioners in this Court, preferred a revision petition before the learned Session Judge, Sawai Madbopur, who accepted the same and remanded the case to the learned Executive Magistrate with directions to proceed in accordance with law in the light of observations made by him. Khasra No. 111 was 'Charagah' consisting of a big area and a part of it measuring 7 Bighas 1 & 11 Biswas was allotted to party (1) in exchange of his Khasra No. 114 measuring 6 Bighas and 2 Biswas and Khasra No. 128 measuring Bigha and 11 Biswas on 7.9.65 Party (1) was recorded as Khatedar of 7 Bighas & 11 Biswas of agriculture la no, which was numbered as 111/2. Since then party (I) was in possession of the land in dispute, and on the application of party (1) dated 12.10.72, proceedings u/s 145, Cr. P. C. (1898) (hereinafter referred to as the Old Code) were initiated by the S. D. M., Sawai Madhopur, and both the parties were required to attend the court of the learned S.D.M. and to put in their written statements as respects the fact of actual possession of the subject of dispute, and further to put in such documents or to adduce evidence by means of affidavits of such persons as they relied upon in support of such claim. The subject of dispute was also attached after a preliminary order was drawn. Both the parties put in appearance and also submitted documentary evidence as well as evidence by means of affidavits. Written statements were also filed. The case of party (1) was that the disputed 7 Bighas & 11 Biswas of agriculture land was Khasra No. 111/2 whereas the case of party (2) was that they were in possession of an area of 20 Bighas & 2 Biswas of Khasra No 111, which had been demarcated as 111/1, and the land actually attached was out of 111/1, and not of 111/2. The learned Magistrate after perusal of the affidavits, written statements and the documentary evidence declared the possession of party (1) on the date of the preliminary order i.e , 13.10.72. party (2) filed a revision petition before the learned Sessions Judge, Sawai Madhopur, who accepted the same and remanded the case to the learned S.D.M., Sawai Madhopur with a direction, as already stated above. 2. The first submission of the learned Advocate for party (1) is that proceedings under S. 145 were pending before the learned S.D.M. prior to coming into force of the code of Criminal Procedure, 1973 (hereinafter referred to as the New Code), and though the learned S.D.M. disposed of the proceedings finally on 4.5.76, the revision filed before the learned Sessions Judge should have been disposed of under the Old Code, and the learned Sessions Judge should have made a reference to this Court instead of disposing of the revision himself. It is next contended that there was no question of remand of the case, as, on the material available on record, the learned Magistrate has declared the possession of party (1) on the date of the preliminary order on the subject of dispute, and the Court of Revision should not interfere in that order of the Magistrate. 3. Therefore, the first question, which arises for determination is, as to whether the revision petition filed before the learned Sessions-Judge against the order of S.D.M., Hindaun dated 4.5.76 should have been disposed of under the Old Code and has been rightly disposed of under the New Code? 4. The old Code was repealed by S. 484 (1) of the New Code and S. 2. (a) to S. 484 of the New Code is a saving clause. 4. The old Code was repealed by S. 484 (1) of the New Code and S. 2. (a) to S. 484 of the New Code is a saving clause. The relevant section is to the following effect:- (a) "If, immediately before the date on which the Code comes into force, there is any appeal application, trial, inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force , Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the Commencement of this Code, shall dealt with and disposed of in accordance withe provisions of this Code. (b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed, and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. 5. I have only extracted the relevant Part of S. 484 of the New Code. A perusal of sub-sec. (2) (a) of the New Code will show that not withstanding the faith that the Old Code has been repealed, it has saved some pending category of cases , namely, (I) any appeal. (2) application (3) trial (4) enquiry, and (5) investigation, and they were to be disposed of, continued, held or made in accordance with the provisions of the Old Code, as if the New Code had not come into force. The provision to sub-sec. (a) of S. 484 makes it clear that so far as the committal enquiry under Chaptar XVIII of the Old Code pending at the commencement of the New Code is concerned, it is to be dealt with and disposed of in accordance with the New Code. Any sentence passed under the Old Code is to be deemed to have been passed under the New Code by virtue of sub-sec. (2) (b) of S. 484 of the New Code. A bare reading of sub-sec. Any sentence passed under the Old Code is to be deemed to have been passed under the New Code by virtue of sub-sec. (2) (b) of S. 484 of the New Code. A bare reading of sub-sec. (2) (a) of S. 484 of the New Code will make it clear that it will only apply to five categories of cases pending when the new Code came into force, i. e., on 1.4.1974, and it is not to apply to those category of cases which were to be instituted after the coming into force of the New Code and as such are to be dealt with under the New Code. This Court in Har Per had v. Radhey Lal, 1975 RLW 305 dealing with S. 484 (2) (a) of the New Code held that the provisions of the Old Code will not govern a revision petition filed after the coming into force of the Act, though the same might have arisen out of the proceeding which were pending under the old code when the new Code came into force. It was further held that a revision is not a vested right and it is only a discretionary remedy, and proceedings in revision cannot he considered to he in continuation of either a trial pending before talk Magistrate or the first revision submitted to the Sessions Judge. 6. On behalf of both the parties, the learned Advocate have place reliance on a number of authorities in which different view have been expressed so far as the applicability of the Old Code or the new Code to revision petitions or appeals filed out of the proceedings pending when the New Code came into force though orders or judgments were passed after the New Code. On behalf of party reliance has been placed on Damodar Panigrahi SC others v. Banchhanidi & others (1977 Cri.L.J. 142 (D.B)) Krishna & others v. S. Jamal & others (S. B. Madras High Court), (1978 Cri.L.J. 1847) Mehbub Rajakhan v. Mohammed Shah Khan others (1979 Cri.L.J. 228) and Hiralal Nansa Bhavsa & Another v. The State of Gujarat (1976 Cri.L.J. 84 (F.B.)) on behalf of party the learned Advocate has placed reliance on Dhanraj & others v. G. K. Vishwas & others (D.B. Calcutta High Court) (1976 Cri.L.J. 1297) Babu Balgonda Patil & others v. Dhanna Kumar Bala Sahab Patel & others (1976 Cri.L.J. 1872) Ram Byas Singh & others v. State of Bihar (1977 Cri.L.J. 28) (F.B. Patna High Court) Bagga Singh v. State of H.P. & Another (1977 Cri.L.J. 301) Bootaram Motiram v. State C. Kunnahamad v. C. Abdul Kadar (1978 Cri.L.J. (NOC) 19 (Kerala)) and state of Maharashtra v. Jawaharlai Shyamlal Ujawan (1979 Cri.L.J. 531) ("D.B. Bombay High Court). 7. In Damodar Panigrahi's case (Supra), the proceedings u/s 145 were pending when the New Code came into force and as such there can be no dispute that by virtue of S. 484 (2) (a) of the New Code they were to be continued and disposed of in accordance with the Old Code. In that case, during the pendency of the proceedings, the matter was referred to a Civil Court under S. 146 of the Old Code and after the receipt of the finding of the Civil Court, the proceedings were disposed of as per the findings of the Civil Court on 13.5.75. A revision was filed and the question arose as to whether the revision was to be disposed of under the Old Code or under the New Code. Under the Old Code, Under S. 146 (1) (d) neither an appeal nor a revision against the finding of a Civil Court was provided. It was under those circumstances that it was held that a vested right has been created in favour of the party in whose favour a Civil Court has given a finding, and therefore, though the Code of Criminal Procedure being a Procedural law is retrospective, but it will not affect vested rights. It was further held that revision before the Sessions Judge being a continuation of S. 145. It was further held that revision before the Sessions Judge being a continuation of S. 145. Proceedings commenced before the New Code can be dealt with in accordance with the Old Code, even though it has been filed after the commencement of the New Code. In this ruling, it appears that reliance was placed on P. Philip v. The Director of Enforcement, New Delhi and Another (1976 Cri.L.J. 920 (SC)) and it was observed : "Supreme Court must be held to have decided that provisions of Old I P.C. govern the Proceeding in revision both before the Sessions Judge as well as before the High Court. This is clear from its final order in directing the High Court to dispose of the revision before it in accordance with law, which means according to the provisions of the Old Cr. P.C. as the rule of the proceeding was implanted in the old Cr. P. C." But, with due respect, the learned Judge in Damodar Panigrahi's case (Supra) have not correctly stated the law laid down by their Lordships of the Supreme Court. In P. Philip's case, the revision petition having been filed against the order of the trial court dated 5.9.73 was pending when the new Code came into force with effect from 1.4.74. and was disposed of by an order dated 6.8.74. The aggrieved party filed a revision before the High Court, which was dismissed in view of S. 397 (3). It was held that as a revision petition was pending before the learned Sessions Judge when the New Code came into force and in view of S. 484 (2) (a) of the New Code came into force, and in view of S. 484 (2) a of the New Code was required to be disposed of in accordance with the provisions of the Old Code, and as such the High Court was clearly in error in holding that the second revision was not competent. Damodar Panigrahi's case was followed in Rajakhan's case (Supra), and the facts of that case were also that proceedings under section 145 were pending when the New Code came into force, and a reference was made to a Civil Court u/s 146 of the Old Code. Proceedings were disposed of by the Magistrate as per the finding of the Civil Court. Proceedings were disposed of by the Magistrate as per the finding of the Civil Court. It was held that to a revision filed against the final order in pending proceedings after the coming into force of the New Code, the procedure prescribed in the Old Code will apply. In Krishan's case (supra), it was held that not only the pending proceedings u/s 145, Cr. P. C. but further proceedings in respect of the same must also be heard and disposed of in accordance with the provisions of the Old Code in view of the saving provision contained in S. 484 (2) (a) of the New Code. It was also a case in which a reference has been made u/s 146 of the Old Code and the proceedings u/s 145 were disposed of as per the finding of the Civil Court.The facts of the above three cases were different and it was observed that once an order under S. 146 of the Old Code is passed by a Civil Court and the same neither being appealable or revisable in view of S. 146( 1 )(b) of the Old Code a vested right is created by disposal of those proceedings finally by the Magistrate and, as such, though the procedural law is retrospective, but it will not affect the vested rights. But, so far as it has been observed in Damodar Panigrahi's case that a revision petition is a continuation of the proceedings u/s 145 Cr. P. C. and as such will be disposed of under the Old Code, with due respects, I do not agree with the same. This Court has in Har Prasad's Case (Supra) held that the revision can not be considered to be in continuation of either the trial pending before the Magistrate or the first revision submitted to the Sessions Judge and further that a party has no vested right in the right of revision, which is only a discretionary. I respectfully agree with that view and a revision petition cannot be said to be continuation of the original proceedings u/s 145, Cr. P. C., but rather is a fresh application. 8. I respectfully agree with that view and a revision petition cannot be said to be continuation of the original proceedings u/s 145, Cr. P. C., but rather is a fresh application. 8. In Bhavsa's case (supra) the full Bench of the Gujrat High Court has, no doubt, taken a view that so far as the right of appeal is concerned, it is a vested right, and the procedure prescribed under the Old Code and the form prescribed therein will continue to apply.It is not necessary to deal with this authority any further, as in the present case agreeing with the view taken in Har Prasad's case, I have held that a revision is not a vested right. But, it will be useful to make a reference to a Full Bench Decision of the Patna High Court reported in Ram Byas Singh's case (supra), wherein this Full Bench authority of Gujarat High Court has been referred to and it has been observed that the observations made therein Burn counter to the judgment of the Supreme Court in the Custodian of Evacuee property, Bangalore v. Khan Saheb Abdul Shakoor (A.I.R. 1961 SC 1087) . 9. In the ruling relied on by the learned Advocate for party (2), referred to above, it has been held that a revision filed after the coming into force of the New Code, though arising out of the proceedings pending when the New Code came into-force is to be governed by the New Code and S. 484 (2) (a) of the New Code does not save such revisions and only pending revisions are saved. I am of the opinion that a bare reading of S. 484 (2) (a) of the New Code makes it clear that such revisions, which were pending at the time of commencement of the New Code are saved and revision petitions filed after the coming into force of the New Code, though arising out of the proceedings pending under the old Code, are to he finally disposed of under the New Code. 10. The other question, which still remains for decision is, as to whether any interference is called for in the order of remand passed by the learned Sessions Judge. There is no dispute between the parties that Khasra No. 111/2 measuring Bighas and 11 Biswas was in the Khatedari of party (1). 10. The other question, which still remains for decision is, as to whether any interference is called for in the order of remand passed by the learned Sessions Judge. There is no dispute between the parties that Khasra No. 111/2 measuring Bighas and 11 Biswas was in the Khatedari of party (1). The only dispute between the parties was as to whether that area or an area of 7 Bighas & 11 Biswas out of Khasra No. 111/1 measuring 20 Bighas & 2 Biswas was attached. The case of party (2) is that an area of 7 Bighas and 11 Biswas was attached out of Khasra No. 111/1, which was in their possession. An application u/s 145 of the Old Code was filed for Khasra No. 111/2 measuring 7 Bighas and 11 Biswas, and a preliminary order in respect of the same was passed. An attachment order was also passed relating to the same land. The parties, beside filing their written statements also submitted affidavits and documentary evidence and there can be no dispute that party (1) was in possession of Khasra No. 111/2, which from 'Naksha Trace' appears to be demarcated The learned Sessions Judge has observed, no doubt, on the consent of the parties, that the witnesses named in the order of the learned Sessions Judge reside nearby the land in dispute, and, therefore, the learned S. D M., Hindaun should call them and record their statements, but it may be observed that the case was to be disposed of in the Court of the Magistrate on the affidavits of such of the persons whose affidavits have been filed, and, if any of the parties, for reasons best known to them, did not think it proper to submit the affidavits of such persons, who are residing or were having their agriculture lands nearby, the land in dispute, the learned Sessions Judge could not have remanded the case with a direction to record their statements even with the consent of the parties. So far as the Girdawar is concerned an application was filed on behalf of party (2) that he should be summoned, but it was dismissed. So far as the Girdawar is concerned an application was filed on behalf of party (2) that he should be summoned, but it was dismissed. It is not disputed that the Girdawar had delivered the possession of 7 Bighas and 11 Biswas of land of Khasra 111/2 to party (1) after the same had been allotted to him in exchange of his land, which he was holding previously as Khatedar. The dispute between the parties was with regard to the identity of 7 Bighas & II Biswas of Khasra II 1/2, which was allotted to party (1). The learned Magistrate observed that the case of both the parties is correct and even then without calling the Girdawar, he has disposed of the case. He has nowhere said that the same land measuring 7 Bighrs & 11 Biswas, which was allotted and of which possession was handed over to party (1), was attached. Therefore, the learned S D. M., Hindaun did not act in accordance with law when he refused to call the Girdawar at the instance of party (2). The Girdawar was an important and material witness to conclusively establish the identity of the land in dispute. 11. Therefore, the learned Sessions Judge could have remanded the case to the S.D.M., Hindaun only for recording the statement of Girdawar. The rejection of the application for summoning Girdawar for his evidence was not in accordance with law. But, as already observed above, the learned Sessions Judge could not have directed the parties to produce the affidavits or to examine such of the witnesses whose affidavits had not been filed. Such a direction was not in accordance with law. 12. In the result, the revision partly succeeds. The order of the learned Sessions Judge that the witnesses named in his order should be summoned and examined is set aside, and the learned S.D.M. will only examine the Girdawar, who actually delivered the possession to party No. 1 and demarcated the land at site. But, in the facts of this case, I do not think it proper to restore the appointment of receiver and to that extent the order of the learned Sessions Judge is set aside, but the learned S.D. M. will be free to pass orders in accordance with law in this respect, if he still thinks that the case is one of emergency requiring attachment of the subject of dispute. The proceedings have already taken many years, and the learned S.D.M., Hindaun is directed to expedite the disposal of the case. The parties should appear in his Court on 17.10.1979.Petition allowed and case remanded. *******