JUDGMENT : 1. This application in revision is directed against an ORDER :, dated the 11th December, 1971, passed by a Magistrate, First Class, of Sitamarhi in a proceeding under Section 133 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code'), substituting the petitioners in place of their father, Mahendra Singh, who was second party to the proceeding. According to the petitioners, the said ORDER :is illegal and without jurisdiction. 2. Opposite party no. 2 filed an application on the 12th September, 1962 before the Deputy Collector in-charge Land Reforms, Sitamarhi (hereinafter referred to, for the sake of brevity, as "L.R.D.C.") praying that the said Mahendra Singh be directed to remove the encroachment made by him on a public road bearing survey plot no. 2021. The L.R.D.C. registered Case No. 329 of 1962, and directed the Block Development Officer, Righa (hereinafter referred to as the B.D.O.) for inquiry and report, and the said B.D.O. submitted his report. In the meantime, there was a report by the Sub-Inspector of Police, Sitamarhi. The Sub-divisional Magistrate, by ORDER :, dated the 4th February, 1963, sent the police report to the B.D.O. The report from the B.D.O. Righa was put up before the Sub-divisional Magistrate on the 16th October, 1963, then he drew up a proceeding under Section 133 of the Code against Mahendra Singh, inasmuch as the B.D.O., in his report, had stated that encroachment had been made by the said Mahendra Singh. In pursuance of the said ORDER :, a copy of the conditional ORDER :passed under Section 133 was issued to the said Mahendra Singh which was to the following effect : "Whereas it appears from the report of B.D.O. Righa (sic) dated 26-7-63 that you have caused obstruction by constructing pucca gate and tatti shed over S.P. No. 2021 which is Public Rasta in village Doghara P.S Sitamarhi which causes much inconvenience to the public in general. I do hereby direct and require you to remove the said encroachment within fifteen days from the date of service of notice or appear in my court on 13th day of November, 1963 and to show cause as to why this ORDER :should not be modified or set aside. In due course cause was shown by Mahendra Singh. I do hereby direct and require you to remove the said encroachment within fifteen days from the date of service of notice or appear in my court on 13th day of November, 1963 and to show cause as to why this ORDER :should not be modified or set aside. In due course cause was shown by Mahendra Singh. The matter was heard and the learned Magistrate in exercise of his powers under Section 137 of the Code, by ORDER :, dated the 10th May, 1967, directed Mahendra Singh to remove the obstruction caused. Against that ORDER :, Mahendra Singh filed Criminal Revision No. 884 of 1969 before this court which was allowed on the 12th August, 1970 and the ORDER :passed by the Magistrate was set aside because there was no proper consideration of the evidence on record. By the said ORDER :, the learned Magistrate was directed by this court to hear the parties and to decide the proceeding afresh in accordance with law. 3. While the matter was pending before the learned Magistrate after remand, the said Mahendra Singh died, and opposite party no. 2 filed a petition before the Magistrate for substitution of the petitioners, who are the minor sons of Mahendra Singh, in place of the deceased Mahendra Singh. The learned Magistrate, by the impugned ORDER :, has added the petitioners as parties to the proceeding in place of their father, Mahendra Singh. 4. Mr. Yogendra Mishra, learned counsel appearing for the petitioners, has challenged the legality of the said ORDER :primarily on the ground that there is no power in a Magistrate under the provisions of the Code for adding the heirs of a person who is a party to a proceeding under Section 133 of the Code, after his death. Learned counsel has contended that in Section 145 of the Code there is a specific provision under Sub-section (7) for addition of the legal representatives of the deceased parties to the proceeding. It is true that under Chapter X of the Code which contains provisions regarding action to be taken by the Magistrate for removal of obstructions and nuisance there is no provision as to what will happen after a person proceeded against dies during the pendency of the proceeding. It is true that under Chapter X of the Code which contains provisions regarding action to be taken by the Magistrate for removal of obstructions and nuisance there is no provision as to what will happen after a person proceeded against dies during the pendency of the proceeding. Section 133 (1), under which a conditional ORDER :is passed, lays down that, "whenever a District Magistrate, a Subdivisional Magistrate considers, on receiving a police-report or other information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public...such Magistrate may make a' conditional ORDER :requiring the person causing such obstruction or nuisance..to remove such obstruction or nuisance....or, if he objects so to do, to appear before himself or some other Magistrate of the first or second Class, at a time and place to be fixed by the ORDER :, and move to have the ORDER :set aside or modified in the manner hereinafter provided". Section 137 (1) directs that, if the person who has been ORDER :ed to remove the obstruction or nuisance appears and shows cause against the ORDER :passed under Section 133, the Magistrate shall take evidence in the matter as in a summons-case. Sub-section (2) of Section 137 authorises the Magistrate, if he is satisfied that the ORDER :is not reasonable and proper, to drop the proceeding, But, if the Magistrate is not so satisfied under Subsection (3). he shall make the ORDER :absolute. The effect of Section 133, read with Section 137, is that on hearing the party complained against and after taking evidence in the matter, it is open to the Magistrate, under Section 137, either to drop the proceeding or to make the conditional ORDER :passed under Section 133 (1) absolute. 5. As already stated, the initial ORDER :under Section 133 (1) of the Code had been passed against Mahendra Singh, who had been charged with causing the obstruction complained of. He is now dead. 5. As already stated, the initial ORDER :under Section 133 (1) of the Code had been passed against Mahendra Singh, who had been charged with causing the obstruction complained of. He is now dead. Now the question is as to whether the Magistrate can proceed and consider the question whether the said conditiona1 ORDER :should be made absolute or not by adding the heirs and legal representatives of Mahendra Singh, or whether, under Sub-section (3) of Section 137, he can direct the heirs to remove the obstruction, if he comes to the conclusion that there was obstruction, and make the ORDER :absolute. If the petitioners are substituted in place of Mahendra Singh, it would tantamount to modifying the preliminary ORDER :because the preliminary ORDER :was made against Mahendra Singh. 6. The question as to whether a Magistrate, while making the ORDER :under Section 133 of the Code absolute could modify the preliminary ORDER :has been the subject matter of judicial pronouncements by different High Courts and it has been held that by passing an ORDER :under Sub-section (3) of Section 137 (Sic) making the preliminary ORDER :which had been passed under Section 133. In (1) Lakshmi Narayan, Advocate V. Mathura Gope (1968 Patna Law Journal Reports 228), it was held by this court that, under Section 137, a Magistrate can either make the ORDER :absolute or direct that no further proceeding should be taken in the case: he cannot pass an ORDER :modifying the preliminary ORDER :which had been issued under Section 133. In (2) the State V. Mahadevappa Goundappa Godi (A.I.R. 1964 Mysore 52), in the preliminary ORDER :the Magistrate had directed to remove a building the description where of had been given in the preliminary ORDER :. But; while passing the final ORDER :, he directed to remove a wall about-3' in height and 1½' in breadth which had been constructed on the northern wall of the applicant's house. It was held in that case that, while making the ORDER :absolute, the Magistrate had modified the preliminary ORDER :which was beyond his jurisdiction, and it was observed that there was no provision in the Code authorising the Magistrate either to amend the preliminary ORDER :or to pass any ORDER :except in accordance with the preliminary notice. It was held in that case that, while making the ORDER :absolute, the Magistrate had modified the preliminary ORDER :which was beyond his jurisdiction, and it was observed that there was no provision in the Code authorising the Magistrate either to amend the preliminary ORDER :or to pass any ORDER :except in accordance with the preliminary notice. The same view has been taken in (3) Judge D'Silva V. Kashmir D'Silva (A.I.R. 1943 Madras 335): (4) Sadanand Tiwari V. State (A.I.R. 1958 Allahabad 174) and (5) Secretary, Ratepayers' Committee V. Dwip Narayan Singh (A.I.R. 1952 Calcutta 127). 7. Now the position is that if a Magistrate, while passing an ORDER :under Section 137 (3) of the Code, has no power either to modify or alter any preliminary ORDER :, then it has to be held that the Magistrate cannot substitute another set of persons in place of Mahendra Singh in the instant case, who was said in the preliminary ORDER :to have caused the obstruction complained of and who was required by the preliminary ORDER :to remove the same. In absence of any specific provision in the Code, if the ORDER :is made absolute under Section 137(3), the Magistrate has to direct Mahendra Singh to remove the obstruction. After having made the ORDER :absolute, a notice under Section 140(1) has to be given to the person against whom the ORDER :was made requiring him to perform the act directed by the ORDER :within a time to be fixed in the notice. Section 140(1) of the Code reads as follows : "140(1). When an ORDER :has been made absolute under Section 136, Section 137 or Section 139, the Magistrate shall give notice of the same to the person against whom the ORDER :was made, and shall further require him to perform the act directed by the ORDER :within a time to be fixed in the notice, and inform him that in case of disobedience. he will be liable to the penalty provided by Section 188 of the Indian Penal Code." Under Section 140(2), within 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 of any other moveable property of such person. As the person against whom the conditional ORDER :had been made in the instant case is dead, the said ORDER :cannot be made absolute against a dead person and thereafter a direction issued asking him to comply with the said ORDER :. The learned Magistrate in the instant case has, perhaps, added the petitioners in place of deceased Mahendra Singh so that he can proceed with the case and pass an ORDER :either making the preliminary ORDER :absolute or dropping the proceeding. But, if he cannot modify the preliminary ORDER :by substituting these persons in place of Mahendra Singh, he cannot proceed further, with the inquiry also. My above view is supported by the decision in (6) Bohraj Jugul Kishore V. Emperor (A.I.R. 1928 Allahabad 300), where it was observed that after the death of the person against whom the preliminary ORDER :under Section 133 had been passed, his successor-in-office had no locus standi. It was further observed that the successor-in-office was in no way bound by the ORDER :made against the deceased. It has been contended on behalf of opposite party no. 2 that the effect of not adding the petitioners as parties to the proceeding will be that the obstruction which has been illegally made will remain in existence and the proceeding has to be dropped, although an encroachment has been made on a public way. No doubt, in absence of any specific provision in the Code, even if the obstruction is found to be on a public way, the matter is beyond the jurisdiction of the Magistrate in view of the death of the person who had been directed by the preliminary ORDER :to remove the said obstruction. But this aspect of the matter has to be taken note of by the legislature. It is just possible that because of this lacuna now Section 138 of the Code of Criminal Procedure, 1973, which has replaced Section 137 of the Code of Criminal Procedure, 1898, has put Sub-section (3) of old Section 137 as Sub-section (2) of Section 138 of the new Code in the following language : "(2) If the Magistrate is satisfied that the ORDER :, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the ORDER :shall be made absolute without modification or, as the case may be, with such modification. A Magistrate has now been empowered to make a preliminary ORDER :absolute either without modification or with' modification, as the case may be. 8. In the result, the application is allowed and the impugned ORDER :, "dated the 11th December, 1971, is set aside. It is, however, made clear that any decision in this JUDGMENT : over the power of a Magistrate will be no bar to any relief that may be available to opposite party no. 2 in law. Application allowed