A Magistrate cannot pass a fresh order after the first order has become final, even if the fresh order is intended to correct a clerical error.

This revision petition is filed against the orders of the S. D. M., Bishenpur, under Section 147, Criminal Procedure Code dated 21-6-1962 and 24-8-1962, directing the petitioner not to interfere with the exercise of the right of user by the 1st respondent over a disputed path and further to remove the posts and shed raised by the petitioner in the disputed path. The Magistrate held in his first order that the said disputed path-way had been in existence for a very long time and that the petitioner had no right to put up posts in order to obstruct the use of the path by the first respondent and further that he put up the shed after the petition under Section 147 Criminal Procedure Code was filed by the first respondent. In his original order dated 21-6-1962, the Magistrate merely directed the petitioner not to interfere with the use of the path-way by the first respondent, but he did not pass any order directing the removal of the obstructions, namely, the posts and the shed. On 4-8-1962, the first respondent filed an application before the Magistrate under Section 369 Criminal Procedure Code stating that due to a clerical mistake or accidental omission the Magistrate has omitted to order the removal of the obstructions to the path and thus to enforce the prohibitory order effectively and that therefore an order may be passed for the removal of the obstructing structures. The petitioner raised the objection before the Magistrate that this was not a clerical error and hence the previous order should not be amended. But the learned Magistrate overruled the objection of the petitioner and said that in the original order passed by him, the petitioner has been directed not to cause any interference in the exercise of right of user by the first respondent, that due to want of an operative portion of the judgment, the petitioner has not removed the structure and obstructions caused by him and that the Court is empowered to pass a further order to make its previous order an effective one, as the right of the first party is declared under Section 147 Criminal Procedure Code. He therefore directed the petitioner by his fresh order passed on 24-8-1962 to remove the posts and shed raised by him immediately within a week from that date.

2. The petitioner went up in revision to the Sessions Judge. But the Sessions judge dismissed the revision. The Sessions Judge was of the view that the easement right claimed by the first respondent was in existence and further that the petitioner had caused obstructions by fixing posts and by erecting shed during the pendency of the proceedings. On the question of the subsequent order passed on 24-8-1962, the Sessions Judge stated that it was a case of clerical error in the original order in omitting to order the removal of the shed and the posts and that therefore the learned Magistrate was right in directing the removal of the obstructions. He, therefore, dismissed the revision.

Now the petitioner has come up to this Court.

3. The first point argued by the petitioner in revision was that the findings of the lower Courts regarding the 1st respondents right in the disputed path-way were perverse and not based on evidence and that the said finding should be set aside in revision. I have perused the order of the Magistrate and the Sessions Judge and I was also taken through the oral evidence and the documents in the case. I find that the order of the Magistrate even though it is a summary proceeding is an elaborate and well-considered order in which he has dealt with the cases of both sides and dealt with the oral evidence and the documents in detail. The said finding of the Magistrate has also been upheld by the Sessions Judge and the Sessions Judge has also dealt with all the evidence in the case. Under such circumstances in a summary proceeding under Section 147, Cri. P.C., the Court will not interfere on the question of fact. After all, the order is subject to the decision by a Civil Court and the p