VARKEY Vs. GOVINDAN

JUDGEMENT

(1.) The Executive Sub Divisional Magistrate, Trichur had passed a conditional order dated 28-3-1979 under S.133(1)(d) of the Code of Criminal Procedure directing respondents 1 to 3 to cut and remove three poola trees and one jack tree standing on the northern boundary of the petitioners' compound dangerously situated and liable to fall on the house of the petitioners. That order was passed on the basis of the reports submitted by the Tahsildar, Trichur and Sub Inspector of Police, Trichur, Town West and directed the respondents to cut arid remove the said trees on receipt of the order and also called upon them to show cause why that order should not be enforced and made absolute.

(2.) The respondents filed their objections in answer to the preliminary order, inter alia contending that this is a civil dispute and not a public nuisance, in relation to which alone, the power under S.133 of the Criminal Procedure Code should be exercised. During the course of the proceedings, the respondents herein filed, a revision petition, before the Court of Sessions, Trichur under S.397 of the Code of Criminal Procedure and also obtained an order of stay against the conditional order. The petitioners, who raised a preliminary objection before the Court of Session submitted that in view of S.397(2) of the Code of Criminal Procedure, the petition would not lie against the interlocutory and conditional order under S.133 of the Code. Sessions Court dismissed this objection for the reason that if on acceptance of the objection, the proceedings would have, ended the order rejecting that objection would be revisable under S.133 of the Code since that would be a final order and not an interlocutory order. The Court of Session therefore directed that the revision petition might be taken on file and numbered. The petitioners have come up in revision against that order of the Sessions Court.

(3.) The counsel for the petitioners reiterated that no revision could have been entertained against an interlocutory order passed under S.133 of the Code, directing the respondents to show cause on a specified date. It is submitted that the respondents could raise their objections in answer to the order directing cause to be shown, if they would not comply with the direction contained in the order. It is submitted that the order enabling the party to show cause cannot be treated as a final order for the only reason that if the objection which they propose to take were to be upheld, there would have been a finality in the proceedings.