Agarwala, J.This is an application which arises in the following circumstances: The Sub-Divisional Magistrate of Bihar, in view of an imminent danger of a breach of the peace between the petitioner and the opposite party, issued notice u/s 144, Criminal P.C., prohibiting either party from going near the subject-matter of the dispute. On cause being shown by the parties, the Magistrate confirmed the order against the second party and discharged it as against the first party. The dispute was with respect to the erection of a bundh which prevented the water of a river from flowing into a pyne. The bundh is said to be on the land of the second party. Having prohibited the second party from going to the bundh, the order went on to say that the first party were permitted to remove the obstruction to the flow of water, that is to say, the bundh. Later the Magistrate directed the Local Police to assist in the removal of the bundh.

2. The second party moved the District Magistrate against the order u/s 144 and asked for the stay of the order for the removal of the bundh. The District Magistrate having refused to order a stay, this Court was moved, and an ad interim stay was granted.

The question now for consideration is whether the cutting of the bundh shall be stayed or not. It has been contended that the order of the Magistrate with regard to the cutting of the bundh is itself illegal and therefore its execution should be stayed. The argument was based on the contention that Section 144, Criminal P.C., empowers a Magistrate only to pass a prohibitory order and not a mandatory order. A number of cases have been referred to in which this contention has been upheld. But when the facts of those cases are examined, it is found that what the learned Judges, who dealt with those cases, were considering was the effect of the words in para. 2 of Section 144 "to abstain from a certain act" and they were considering whether the power conferred upon the Magistrate by the Section authorizing him to direct a person to abstain from a certain act, includes a power to direct the doing of an act.

3. It is to be observed however that the Section not only empowers a Magistrate to direct a person to abstain from a certain act but also empowers a Magistrate to direct a person "to take certain order with property in his possession or under his management," if the Magistrate considers that such direction is likely to prevent, or tends to prevent, amongst other things, a disturbance of the public tranquillity. This part of the Section, it seems to me, clearly empowers a Magistrate to pass a mandatory order on persons in possession of property if it is necessary in the opinion of the Magistrate that such action should be taken for the purposes enumerated in the Section. That view is supported by the decision of a Division Bench of the Calcutta High Court in Balaram Dey and Others Vs. Pran Ram Chatterjee, . That was a case in which the conviction of a person who had disobeyed the, order of the Magistrate passed u/s 144 directing him to cut a certain bundh Was upheld, on the view that the direction to cut the bundh was a legal order u/s 144.

4. It was, in my view, within the power of the Magistrate in the present case to direct the cutting of the bundh; but in point of fact this case is even stronger than that. It is not the petitioners, who were directed to cut the bundh. In fact as the disputed land is not in their possession, a mandatory order could not be passed against them. The Section only authorizes a mandatory order to be passed against a person who is, "in possession of the property." Now the property in the present case is in the possession of the second party and it is the second party that has been directed to cut the bundh. The second party did not complain against this order but it is the first party which consider themselves aggrieved.

5. However that may be, the question is whether in the circumstances of the present case the execution of the order should be stayed. The facts found were that the night before the Magistrate passed the conditional order, u/s 144, the second party, anticipating the order, endeavoured to frustrate it by erecting the bundh on land which was not in their possession and to which they had no right whatsoever. In these circumstances as the order of the Magistrate is found to be legal and the object of the petitioners found to be to frustrate such order, I do not feel justified in granting the petitioners prayer that execution of the order for removal should be stayed. The rule is discharged.