AMBIKA PROSAD SINGH Vs. GUR SAHAI SINGH

JUDGEMENT

(1.) This Rule was apparently issued on some apparent", conflict between the rulings in the case of Pasnpati Nath Rose v. Naanda Lal Bose 5 C.W.N. 67 and Lalit Chandra Neogi v. Tarini Persad Gupta 5 C.W.N. 335 with the later decision in the case of Dalimir Puri v. Khodadad Khan 36 C. 923 : 14 C.W.N. 178 : 4 Ind. Cas. 415 : 10 Cr. L.J. 579. All these cases, we may say, are in direct conflict with the early Madras ruling In re Alfred Lindsay 4 M. 121. But that, of course, does not affect our decision in this Court. We are bound to follow the rulings of the Calcutta Court. Now, it so happens that this apparent conflict has been dealt with by us in a judgment Dowalat Koer v. Siva Pershad Pandit 10 Ind. Cas. 618 : 12 Cr. L.J. 319 : 15 C.L.J. 267, which does not appear in any of the various reports, but we are told it is reported in 10 Indian Cases 615, which was passed in Criminal Revision No. 187 of 1911. We, therefore, hold that the ground upon which the order was set aside in Dalmir Puri s case 36 C. 923 : 14 C.W.N. 178 : 4 Ind. Cas. 415 : 10 Cr. L.J. 579 was quite distinguishable from the previous cases which hold that the Magistrate had power to invoke the assistance of the Police in carrying oat the injunction he made under Section 147. The injunction in this case is a good one. It appears on the face of the order that the second party having satisfied the Magistrate that he had a right to have an opening in the ail in question for the purpose of passing water, he having exercised the right for several years and that also during the last rains when, the right was last exercisable, it was clearly the Magistrate s duty to direct the first party to make three openings in the said ail within a reasonable time from the passing of the order. The time given was 5 days.

(2.) Then cornea the question, if he failed to carry out the Court s order, what was to be done? The Court held, following our judgment in Dowlat Koer v. Siva Pershad Pandit 10 Ind. Cas. 618 : 12 Cr. L.J. 319 : 15 C.L.J. 267 and the cases we have cited from 5 Calcutta Weekly Notes, that the Police might be ordered to see that the obstruction was removed. Of course, there is the alternative that the parties, who failed to carry out the injunction, should be prosecuted under Section 188. But we think that that would be a cumbrous course and it would be much more prejudicial to the second party in a Section 145 case than the usual method of obtaining Police assistance.

(3.) The Rule is, therefore, discharged.