1. This Rule has been issued to show cause why the order passed by the Sub-Divisional Magistrate of Munshiganj on the 4th January 1926 should not be set aside on Grounds Nos. 2 and 3 of the petition. It appears that proceedings under Section 133 of the Code of Criminal Procedure were drawn up on the 4th March 1925 by Mr. M.C. Ghose, the then Sub-Divisional Magistrate of Munshiganj against nine persons who were named in the said proceedings. The proceedings related to the removal of an obstruction from what was alleged to be a halat. Notices of these proceeding were issued, and it appears from the report of the serving peon that they were served upon eight out of the nine persons. The report runs to this effect : Opposite parties Nos. 1, 3, 4, 5, 7 and 8, although they were present at the time when the notices were tendered to them for service, did not give, any receipt and upon that the said notices were served by affixing them on some conspicuous part of their dwelling house; and as regards Opposite Parties Nos. 2 and 6 the report was to the effect that they were not present and that the notice?, were served on the persons who were in their joint family house. Whether his service was valid or not is a matter with which we are not concerned at the present moment.
2. It appears further that thereafter the learned Sub-Divisional Magistrate Mr. M.C. Ghose, on the 14th April 1925, apparently being of opinion that the service was sufficient, recorded the following order:
Second party absent. Report shows notices personally served. Rule made absolute. Ask police to clear the obstruction.
3. On the 19th December 1925 one of the parties filed a petition before the Sub-Divisional Magistrate, Mr. R.B. Mukerji who had in the meantime succeeded Mr. Ghose alleging that the opposite party did not claim the plot of land on which the obstruction is alleged to have stood and that it was impossible to fill up the excavation and praying that orders might be passed on the first party to fill up the ditch at their own costs if they so desired. The learned Magistrate thereupon on the 4th January 1926 passed an order directing that the order previously passed as aforesaid for the removal of the obstruction should be withdrawn. This is the order which is complained of in this Rule. The ground upon which the Magistrate passed this order appears to have been that the ditch had been in existence for more than 30 years and that only one of the parties, namely, Abdul Kader who was a Sub-Inspector of the Bengal Police and was posted at Munshiganj had not evidently been served with any notice in connexion with the proceedings under Section 133. In our opinion this ground did not give any jurisdiction to the learned Magistrate to pass the order cancelling the order made on the 4th April 1925 to which we have already referred.
4. It has been contended on behalf of the opposite parties who have appeared in this Rule that none of them had been actually served with the notices that were issued in connexion with the proceeding and a number of affidavits have been filed in this Court in order to establish that fact. While it is not possible for us to arrive at a definite finding as to whether these notices were actually served or not upon all the opposite parties it is quite clear to us that the learned Sub-Divisional Magistrate himself has not yet gone into this question. We are, therefore, of opinion that the order directing the withdrawal of the previous order by which the obstruction was directed to be removed is a bad one and we accordingly set that order aside. The procedure to be followed now is clearly laid down in Section 140 of the Code of Criminal Procedure. Sub-section (2) says that if such Act is not performed within the time fixed the Magistrate may cause it to be performed and may recover the costs of performing it either by the sale of any building goods or other property removed by his order or by the distress and sale o any other moveable property of such person within or without the local limits of such Magistrate's jurisdiction and that if such other property is without such limits the order shall authorize its attachment and sale when endorsed by the Magistrate within the local limits of whose jurisdiction the property to be attached is found. The order of the 4th of April 1925 is, in our opinion, a good and a valid order and the obstruction against which that order is directed will, have to be removed. When the question will arise from which party or parties the costs for the removal of t he said obstruction will have to be recovered that question will have to be determined upon a consideration of the question as to the parties upon whom the notice s in connexion with the proceedings under Section 133 were served and it would obviously be unjust for the Magistrate to make an order for recovery of those costs from a party who was not actually served with any notice of the said proceedings.
5. For these reasons we are of opinion that the Rule should be made absolute, that the order directing the withdrawal of the previous order passed for the removal of the obstruction should be set aside and that all further question that may arise in connexion with these proceedings will have to be dealt with in the light of the observation which we have made.