JUDGMENT 1. This Rule is directed against an order of the Additional Sub-Divisional Magistrate of Chittagong refusing to enforce an order passed by his predecessor u/s 137 Cr.P.C. On the 29th October 1920 the then Sub-Divisional Magistrate of Chittagong made an order absolute directing the opposite party in this Rule to remove the nuisance from a tank either by re-excavating or by filling it up or by cleaning the water weeds and giving other directions. This order was not obeyed. It is not necessary to set out all the events that happened, but on the 14th July 1922 the petitioner who has obtained this Rule applied to the present Sub Divisional Officer to enforce the order. That application was refused on the ground that the order passed u/s 137 Cr.P.C. was an illegal order. We hold that the Magistrate was not justified in going behind the order of his predecessor and coming to a decision as to its legality. 2. It is pointed out that u/s 140 (2) Cr.P.C. the Magistrate has discretion, but this discretion must be a judicial discretion and no Magistrate has judicial discretion to sit as a Court of appeal and decide whether an order passed by a Magistrate of concurrent jurisdiction was a proper order or not. For these reasons we hold that the Magistrate exceeded his powers and acted without jurisdiction. We have also considered whether or not the original order passed by the First Sub-Divisional Magistrate was legal or not, and we hold that on the findings arrived at by the Magistrate he had jurisdiction to pass the order which he did pass u/s 133 Cr.P.C. and make it absolute u/s 137 Cr.P.C. The learned Sub-Divisional Magistrate who doubted the correctness of this order has referred to Rulings of other High Courts. It is unnecessary to discuss these though we do not agree that they cannot be reconciled with the decisions of this Court. The decisions in the case of Bistoo Chandra Chakravarty 10 W.R. (Cr.) 27 and in the case of Indra Nath Banerjee v. Queen Empress (1898) 25 Cal. 425 - 2 C.W.N. 113 show that the Magistrate has power to act u/s 133 Cr.P.C. in a case like the present. 3. The decisions in the case of Bistoo Chandra Chakravarty 10 W.R. (Cr.) 27 and in the case of Indra Nath Banerjee v. Queen Empress (1898) 25 Cal. 425 - 2 C.W.N. 113 show that the Magistrate has power to act u/s 133 Cr.P.C. in a case like the present. 3. We accordingly make the Rule absolute and set aside the order of the additional Sub-Divisional Magistrate of Chittagong dated 5th September, 1922, rejecting the application of the petitioner u/s 140 (2) Cr.P.C. and we direct that the Magistrate do pass orders on that application according to law.