1. The preliminary order was passed on the 21st March 1921. The Magistrate finds that the counter petitioner was in possession on the 16th March 1921 but there is no finding as to who was in possession on the 21st March. It is argued that the order passed is illegal owing to there being no finding as to who was in possession on the 21st March 1921 as required by Section 145 Clause (4) of the Code of Criminal Procedure. Thumbalabed Hampanna v. Parisi Gangamma (1915) 27 I.C. 911, and Mandalamany Ellamandu v. Chinna Venkiah (1909) 9 Cr. L.J. 505, support this contention. There is no doubt that the order is irregular, as it does not find that the Counter petitioner was in possession on the 21st March.
2. The question remaining is whether on the facts of the present case; I should set aside the order. The interval between the date when the Magistrate finds counter petitioner to be in possession and the date of the preliminary order is only five days and there is nothing in the record to show that there is any likelihood of possession having changed in the interval. In the case in Mandalamany Ellamandu v. Chinna Venkiah (1915) 27 I.C. 911 the interval was more than a year and in the case in Thumbalubed Hampanna v. Parise Gangamtna (1909) 9. Cr. L. J. 505 it was nearly a month. It also appears that the counter petitioner has a decree of court in his favour, and having regard to the rulings in Gordon Sims v. Johurry Lal (1901) 5 C.W.N. 563 , and Madholal Bithal Gayawal v. Jug Lal Singh (1902) 6 C. W. N. 841, it would be the duty of the Magistrate to maintain the possession of the party who has a decree of a competent court and who was put in possession in execution.
3. When a party is found to be in possession a few days before the preliminary order and when there is nothing on the record to suggest that there was any change of possession I do not think the court is bound in revision to vacate the order.