Bapna, J. - (1.) THIS is a reference by the learned Sessions Judge of Pali.
(2.) PROCEEDINGS under sec. 145 Cr. P. C. were pending in the Court of the Sub-Divisional Magistrate, Jaitaran, on complaint on behalf of Sumer Singh Jagirdar of Akeli against Moola and others in respect of a certain well and land appertaining there to. At a certain stage, the pleader for the complainant made an application that if Moola would state on oath by putting his hand on his son that the well and the land in dispute belonged to him, the complaint will be withdrawn. Before, however, Moola could take the oath, the pleader for the complainant made an application that the complainant did not agree to be bound by the oath as mentioned in the earlier application, and that, therefore, the offer made was being revoked. The learned Magistrate, however, thought that the offer to be bound by a special oath could not be revoked and passed an order accordingly on 11. 9. 51. On revision, the learned Sessions Judge of Pali has observed that a parly could resile from an agreement to be "bound by an oath of the opposite party at any time before the oath had been administered. He, therefore, recommended that the order of the Magistrate dated nth September 1951 be set aside. The view of law taken by the learned Sessions Judge is correct. It has been held in Roop Singh vs. Mrs. Arjun Sen (A. I. R, 1935 Allahabad 276) that a party could resile from an agreement to refer the matter in dispute to oath, and the court had no jurisdiction thereafter to order that the matter should be determined according to oath proposed to be taken earlier provided of course the revocation is made before the oath is taken as proposed. There is one more reason in this case why it would be illegal to insist that the matter be determined on the special oath. According to sec. 8 of the Indian Oath Act, the oath proposed to be taken should be one which is not repugnant to justice or decency and not purporting to affect any third person. The path in the present case, which was to be taken, was that Moola was to swear after putting his hand on his son. It, therefore, purported to affect a third person and such an oath could not be allowed to be taken. The reference is accepted, the order of the Sub-Divisional Magistrate dated nth September 1951 is set aside and the case is sent back to be tried further according to law. .;