ANGAPPA GOUNDER Vs. KRISHNASWAMI GOUNDER

JUDGEMENT

(1.) THIS is a reference by Ratnaswami J. , on the question as to whether Section 147 cri. P. C. , empowers a Magistrate only to pass a prohibitory order, which is generally in a negative form, or whether it empowers a Magistrate to issue a positive order to secure the exercise of the right of the aggrieved party, who complains of the infringement of his right.

(2.) THE reference has arisen out of an order passed by the learned Ex-Officio First class Magistrate, Namakkal, in regard to a channel concerning which a dispute arose between the A and B parties and which channel at the time of the enquiry before the Magistrate had become obliterated and had ceased to be a channel functioning as such. The operative portion of the order against which a revision was preferred before the learned Judge is contained in paragraph 9 of the order passed by the learned Magistrate. After reviewing the entire evidence let in before him the learned First Class Magistrate of Namakkal observed therein as follows :

(3.) IN ILR 4 Mad 121 (C), a Bench of this Court over which the Chief Justice presided held that an ex/parte order, purporting to be made under Section 532 Cr. P. C. , directing the party in possession not to retain possession of the land until he should obtain the decision of a competent civil Court adjudging him to be entitled to exclusive possession, with a further direction to remove the obstruction was bad in law. This decision was under the old Code, that is Act X of 1872