MOHAMMED KOYA Vs. HUSSAIN

JUDGEMENT

(1.) The defendants in O. S. 77/81 on the file of the Munsiff - II of Kozhikode have filed this revision petition challenging an order passed in the suit on a preliminary point raised by the revision petitioners that the suit is not maintainable. The suit was one for declaration that the order passed by the Executive Magistrate, Kozhikode, in a proceeding under S.133 of the Code of Criminal Procedure in M. C. No. 12/78 is not binding on the plaintiff and for setting aside the same and also for an injunction restraining the defendants from taking any action in pursuance of the said order to get a coconut tree cut down and removed.

(2.) The learned Munsiff heard both sides on this preliminary point and held that the bar of institution of a civil suit created under sub-s.(2) of S.133 Cr. P. C is not applicable to the present case, relying on a decision of the Allahabad High Court in Dalichand v. Emperor (AIR 1922 Allahabad 833).

(3.) In support of the revision petition, the learned advocate appearing for the revision petitioners contended that the Trial Court failed to note that there are no allegations in the plaint constituting a cause of action to set aside the order in question and that the civil court has no jurisdiction to set aside an order passed by the criminal court. The learned advocate appearing for the respondent, on the other hand, strongly supported the order relying on the decisions reported in State of W. B. v. The Indian I. & S. Co. ( AIR 1970 SC 1298 ); V. L. N. S. Temple v. I. Pattachirami ( AIR 1967 SC 781 ) and Provincial Govt., Madras v. J. S. Basappa ( AIR 1964 SC 1873 ).