S.K. Kader, J.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 u/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. The learned Munsiff heard both sides on this preliminary point and held that the bar of institution of a civil suit created under sub-section (2) of Section 133 Cr.P.C. is not applicable to the present case, relying on a decision of the Allahabad High Court in Dulichand Vs. Emperor, .

2. 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 The State of West Bengal Vs. The Indian Iron and Steel Co. Ltd., ; V.L.N.S. Temple v. I. Pattabhirmai ( AIR 1969 S.C. 781) and The Provincial Government of Madras Vs. J.S. Basappa, .

3. The question for consideration is whether there is adequate ground to interfere with the order in question in exercise of the revisional jurisdiction. The contention raised before the trial court was that by virtue of the provisions in sub-section (2) of Section 133 Cr.P.C. the suit in question is not maintainable to get an order passed u/s 133 Cr.P.C. set aside. Sub-section (2) of section 133 Cr.P.C. reads:

No order duly made by a Magistrate under this section shall be called in question in any civil court.

It is very clear from the express words in the sub-section that the order mentioned therein applies only to an order passed under that section, namely, Section 133 Cr.P.C. Sections 133 to 143 in Chapter X of the Code of Criminal Procedure relate to public nuisance and the various procedures to be adopted for removal of the public nuisance. Sections 133 to 138 specifically describe various procedures to be followed in this regard, at first passing a conditional order and thereafter an absolute order. There are two stages contemplated under these sections. The first stage commences with passing of a conditional order which is dealt with u/s 133; while passing of the final order is u/s 138. Admittedly the order sought to be set aside in the civil suit is not one passed u/s 133 but a final order passed u/s 138 Cr.P.C. Therefore, as is clear from the express words in sub-section (2) of section 133, the bar of civil suit stated therein cannot apply to a final order passed u/s 138 Cr.P.C. u/s 9 of the Code of Civil Procedure, the civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There is nothing in section 138 or in any other sections in that Chapter either expressly or impliedly barring cognizance of a suit of this nature. A similar question came up for consideration before this Court in Kuppandy v. Sivasankaran (1982 KLT 908). While construing the provisions in sections 133 and 137 Cr. P.C. and section 9 C.P.C. George Vadakkel, J. observed that while section 132(2) expressly and explicitly bars a suit calling in question a preliminary order u/s 133(1), there is no such prohibition as regard an injunction order passed by the Magistrate u/s 142 and the final order passed under section137, though the-Magistrate is protected from any suit in respect of anything done by him in good faith pursuant to the injunction order and/or the final order, as the case may be, and that the proceedings u/s 133 of the Code of Criminal Procedure do not bar a suit, if such a suit is otherwise maintainable under the Code of Civil Procedure. The suit in question is admittedly of a civil nature. There is no prohibition either expressly or impliedly ousting the jurisdiction of a civil court to try a suit of this nature, either in Chapter X of the Code of Criminal Procedure or Section 9 of the Code of Civil Procedure. Therefore on the general principle of law enunciated in Section 9 C.P.C. a suit of this nature will lie. The principles u/s 9 have been well stated in the decisions of the Supreme Court referred to above.

Therefore there is no merit in this revision petition and the same has only to be dismissed. During the course of the arguments, the counsel for the petitioners made a grievance that the trial court did not at all consider whether there are materials in the pleadings for constituting a cause of action for the suit in question. But this point is not seen urged before the trial court and no issue also is seen framed in this regard. If they are so advised it is open to the petitioners to raise this point before the trial court.

In the result, this revision petition fails and is hereby dismissed. No costs.