ORDER Mishra, J :- 1. This is a revision under section 115 of the Code of Civil Procedure, filed against order dated 25-2-1977, passed by the First Additional District Judge, Gwalior, in Civil Miscellaneous Appeal No. 38 of 1976, arising out of order dated 29-6-1976. passed by the Third Civil Judge Class II, Gwalior in Execution Case No. 91-A/67-76, ordering criminal prosecution of the decree-holder-applicant under section 195(1)(a) of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) for having committed offence punishable under section 182 of the Indian Penal Code. 2. The facts essential for the decision of the revision are as under: (i) The decree holder-applicant has obtained a compromise decree for eviction against Guru-Dattamal on 28-8-1968, which provided inter alia that the suit house will be vacated by 13-4-1971. Diwanchand was a consenting party to application for compromise submitted by the parties. (ii) This decree was put in execution., warrants for possession and attachment were issued. When the warrarnts were being executed, Layakchand, non-applicant (Grand son of Guru Dattamal) caused obstruction in delivery of possession Thereafter, on 12-5-1972, Layak Chand along with Diwan Chand Bhagwandas and Madanlal submitted an application on the ground that they are not bound by the decree. Stay of the execution of decree was also prayed for. Thereupon, the executing Court passed an ex parte order staying the execution of the decree. The decree-holder applicant opposed this application. By order dated 9-10-1972, the Executing Court confirmed the ex-parte stay order on the condition of depositing Rs. 150/- per month as rent until decision of the application. (iii) Aggrieved by the imposition of the aforesaid condition, the non-applicant Layak Chand along with Diwanchand and Madanlal preferred Civil Revision No. 471 of 1972. In this revision this Court passed an order on 22-12-1972 to the effect that: "Meanwhile, although the proceeding in the executing Court shall not be stayed, the order of the executing Court directing the petitioners to deposit Rs. 150/- per month as rent shall remain stayed until the disposal of this revision, provided the petitioners furnish solvent security by December 27, 1972, for depositing rent at the rate of Rs. 150/- per month as rent shall remain stayed until the disposal of this revision, provided the petitioners furnish solvent security by December 27, 1972, for depositing rent at the rate of Rs. 150/- per month for the period from 12-5-1972 to the date of the decision of this revision, in case the revision is dismissed." Ultimately, this revision was dismissed by this Court, vide order dated 3rd March, 1976, subject to certain observations made in para 10 thereof. (iv) Thereafter, the decree-holder submitted an application dated 6-3-1976 to the Executing Court wherein it was stated that the execution proceedings were stayed by the order of the High Court Civil Revision No. 471 or 1972 has been dismissed by the High Court on 3-3-1976. The amount of Rs. 22,303.10 p is due from the judgment debtor and possession has also to be delivered to the decree-holder. Accordingly, it was prayed that warrant for possession of the house and attachment of Immovable property of the Judgment debtor be issued. (v) On the basis of the aforesaid application, by order dated 19-3-1976 issuance of warrant of delivery of possession and attachment was ordered. (vi) By application dated 24-3-1976, Layak Chand and other prayed for setting aside of the order of Issuance of warrant on the ground that the execution proceedings had been stayed by the Court. The stay order passed by the Executing Court is still in force and it appears that the decree holder has by practising fraud on the Court obtained order of issuance of warrant. (vii) The decree-holder also submitted another application under Order 21 rule 35, CPC, praying for execution of the warrant for possession and attachment in absence of the Judgment-debtor. On 24-3-1976; the Executing Court passed orders on the application of the non applicant, as well as the decree-holder to the effect, that the decree-holder has, by suppression of the factum of order of stay passed by the Executing Court, on 12-5-1972, obtained order of issuance of warrant and it directed that the execution proceedings will remain stayed. The application of the objector• non-applicant was allowed and that of the decree-holder was dismissed. The application of the objector• non-applicant was allowed and that of the decree-holder was dismissed. Thereafter, the matter remained pending It was by application, dated 27-4-1976, filed under section 195 of the Code, that the non-applicant prayed for prosecution of the decree holder for having committed offence under section 182 of the Indian Penal Code, on the ground that in the application, dated 6-3-1976, filed by the decree-holder, wrong information was given and the factum of the stay order passed by the Executing Court, on 12-5-1972, has been suppressed. Thus, the decree-holder has secured the order of issuance of warrant of P03scision by giving false information. (viii) The decree holder opposed this application, but by order dated 29-6-1976, the learned Judge of the Executing Court has ordered filing of a complaint against the decree-holder for having committed offence under section 182 of the Indian Penal Code. 3. Aggrieved by the same, the decree-holder submitted an appeal under section 341 read with section 195(2) of the Code, wherein prayers of the following effect were made: "Appeal, Swikara Ki Jakar Nimn Nayalaya Ki Agya Nirast Kiye Jane Ki Krupa Ki Jawe Our Complaint Withdraw Karne Ki Agya Pradan Ki Jawe." This 'appeal-cum-application' was filed on 13-8-1976. It was accompanied by certified copy of the order dated 29-6-1976. The application for certified copy of this order was made on 24-7-1976. The applicant was told to appear on 30-7-1976 Certified copy was ready on 29-7-1976, but the applicant took the copy on 12-8-1976 Decree-holder also submitted an application under section 5 of the Indian Limitation Act, for condonation of delay involved in filing of the appeal. The non-applicant opposed this application and competency of this appeal. The learned First Additional District Judge by the impugned order held that : (a) the appeal is time-barred and no ground sufficient entitling the decree-holder to the benefit of section 5 of the Indian Limitation Act, has been made out; (b) the aforesaid order dated 29-6-1916 was confirmed in Criminal Appeal No. 120 of 1976 of the Court of III Additional Sessions Judge, Gwalior, dated 25-2-1977. This order acts as impediment to grant of relief in the prevent proceedings. (c) Civil Judge Class II, who bas passed tile order dated 29-6-1976, is not administratively subordinate to him within the contemplation of section 195(2) of the Code. This order acts as impediment to grant of relief in the prevent proceedings. (c) Civil Judge Class II, who bas passed tile order dated 29-6-1976, is not administratively subordinate to him within the contemplation of section 195(2) of the Code. Aggrieved by the aforesaid order, the present revision ha~ been filed against the impugned order. 5. Shri B.D. Gupta, learned counsel for the decree-holder-applicant, contended that: (i) the impugned order is illegal and that, in case, the appeal under section 341 was found to be not maintainable, power or ordering withdrawal of complaint under section 195(2) of the Code, should have been exercised. 6. Mr. R.D. Jain, learned counsel for the non-applicant, argued in support of the impugned order and submitted that the revision is not maintainable on civil side and at any rate, no case is made out for interference in the impugned order. 7. After having heard the learned counsel for the parties, I am of the opinion that the revision deserves to be partly allowed to the extent and in the manner indicated hereinafter and the proceedings initiated before the Additional District Judge, deserve to be transferred to the District Judge, Gwalior for the purpose stated hereafter. 8. In the present case, by the application, dated 27-4-1976, submitted by the non-applicant under section 195 of the Code, prayer for ordering prosecution of the decree-holder under section 182 of the Indian Penal Code (No. 45 of 1960), has been made. Accordingly, it falls under section 195(1)(a) of the Code. The order passed by the Executing Court, on 29-6-1976, directing filing of a complaint, in writing, against the decree-holder-applicant, for having committed an offence punishable under section 82 of the Indian Penal Code, falls under section 195(1) (a) of the Code. The Code does not provide for an appeal against such order. What subsection (2) of section 195 of the Code provides, is that, where the complaint has been made by a Court acting as 'public servant' under Clause (a) of subsection (1) of section 195 of the Code, any authority to which he is administratively subordinate may order withdrawal of the complaint. Proviso to sub-section (2) prescribes that no such withdrawal shall be ordered. If the trial in the Court of first instance, has been concluded. Proviso to sub-section (2) prescribes that no such withdrawal shall be ordered. If the trial in the Court of first instance, has been concluded. In order to appreciate the real controversy between the parties, it appears necessary to analyse the provisions contained in sections 195, 340 and 341 of the Code. They are reproduced below: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(l) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1960), or (ii) of any abetment of, or attempt to commit, such offence. or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the Public Servant concerned or of some other Public Servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1960), namely sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to' which that Court is subordinate. (2) where a complaint has been .made by a public servant under Clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In Cl, (b) of sub-section (l), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes or this section. (4) For the purposes of Cl. (b) of sub-section (1) a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decree or sentence of such former Court, or in the case of a .civil Court from whose decree no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local' jurisdiction such civil Court is situate: Provided that- (a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) Where appeals lie to a Civil and also to a Revenue Court such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." "340. Procedure in cases mentioned in section 195-(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Cl. (b) of sub• section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect, (b) make a complaint thereof in writing, (c) send it to a magistrate of the First Class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate, and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence, may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed : (a) Where the Court making complaint is a High Court, by such officer of the Court as the Court may appoint, (b) in any other case, by the Presiding Officer of the Court. (4) In this section, "Court" has the same meaning as in section 195." "341. Appeal.-(1) Any person on whose application any Court other than a High Court has refused to make a complaint under subsection (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly. (2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision" (emphasis supplied by me) 9. On combined reading of the aforesaid provisions following position of law emerges so far as it is relevant, for the present purposes. (i) No Court shall take cognizance of any offence punishable under section 172 to 188 (both inclusive) or the Penal Code or any abetment or attempt to commit or of criminal conspiracy to commit such offence except on a complaint in writing by the public servant concerned (vide section 195 (1); (ii) No Court shall take cognizance of any offence specified in sub-clauses (i), (ii) and (iii) of Cl. (b) of sub-clause (1) of section 195 of the Code except on the complaint in writing by the Court. (iii) Where a complaint has been made by a public servant under Cl. (b) of sub-clause (1) of section 195 of the Code except on the complaint in writing by the Court. (iii) Where a complaint has been made by a public servant under Cl. (a) of sub-section (1) of section 195 of the Code, an authority to whom the public servant making complaint is administratively subordinate may order withdrawal of the complaint (iv) No such withdrawal shall be ordered if the trial (of the complaint) in the Court of the first instance has been concluded; (v) "Public servant" has not been defined in the Code, but it has been defined by section 21 of the Indian Penal Code, 1860. By virtue or section (2) (y) of the Code, words and expressions used in the Code and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Penal Code by Clause third of section 21 provides that the words, "Public Servant' denote a person falling under any of the descriptions hereinafter following, namely: Third.-Every Judge including any person employed by law to discharge whether by himself or as a member of any body of persons any adjudicatory function;" (First Second Fourth to Twelfth Clauses omitted being not relevant here). As provided by section 19 of the Penal Code, the word "Judge" inter alia denotes every person who is officially designated as a Judge (vi) A 'Judge' making a complaint in respect of offences punishable under sections 172 to 188 of the Indian Penal Code is a public servant within the contemplation of section 195 (1)(a) of the Code. (vii) The Code does not provide for any appeal against the order passed under section 195 (1)(a). What is contemplated by subsection (2) of section 195 is that withdrawal or the complaint so made may be ordered by an authority, to which the public servant making complaint is administratively subordinate. (as stated above at (ii)). (viii) When an order of making complaint is passed under clause (b) of section 195(1) of the Code, then section 340 and section 341 of the Code are attracted. (ix) Sub-section (1) of section 341 of the Code, provides for an appeal under the circumstances falling within the ambit of sub-sections (1) and (2) of section 340 of the Code. (viii) When an order of making complaint is passed under clause (b) of section 195(1) of the Code, then section 340 and section 341 of the Code are attracted. (ix) Sub-section (1) of section 341 of the Code, provides for an appeal under the circumstances falling within the ambit of sub-sections (1) and (2) of section 340 of the Code. (x) Subsection (2) of section 342 of the Code concerns itself with attaching finality to orders passed under section 341 (I) and subject to an order passed on appeal under sub-section (1) an order under section 340 of the Code shall be final and shall not be subject to revision. (xi) The prohibition enacted by sub section (2) of section 341 of the Code, does not apply to revisions, which may be filed in proceedings originating by an order making of complaint under section 195(1)(a) of the Code by a Court, acting as public servant. There is also no prohibition against entertaining of a revision on order purporting to have been passed under section 195(2) of the Code. 10. When the learned Judge passed order dated 29-6-1976, under section 195(1)(i)(a) of the Code he did not cease to be a Civil Court. The learned Additional District Judge, when approached by the decree-holding-applicant, acted as a Court subordinate to this Court, within the contemplation of section 115 of the Code of Civil Procedure, 1908 Section 115 of the Civil Procedure Code provides that the High Court may call for the record of any case, which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears to have either exercised the jurisdiction not vested in it by Jaw or to have failed to have exercised the jurisdiction so vested or to have exercised the jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. Sub-section 2 of section 115 of the CPC provides that the High Court shall not under this section, vary or reverse any decree or any order, against which appeal lies either to the High Court or to any Court subordinate there to. No appeal lies in the matter to this Court or any Court subordinate to this Court. As such the present revision is competent. 11. No appeal lies in the matter to this Court or any Court subordinate to this Court. As such the present revision is competent. 11. Sub-section (2) of section 195 of the Code vests power of ordering withdrawal of complaint by any authority to which the public servant, ordering making of the complaint, under Cl. (a) of sub-section (1) of subsection (1) of section 195 of the Code is administratively subordinate. The decree-holder applicant in the instant case, has also prayed for grant of relief under sub-section (2) of section 195 of the Code. The action of the applicant before the Additional District Judge, may be treated as 'appeal-cum-application'. So far as appeal is concerned it ii incompetent, as there is no provision of appeal in the matter. As such prayer for an order of withdrawal of the complaint only appears to be legally permissible. 12. Now, the question that remains to be considered is as to what is the appropriate forum for seeking relief under section 195 (2) of the Code. The Civil Judge acting as public servant under section 195(1)(a) cannot be regarded as administratively subordinate to the Court of Additional District Judge. Chapter 4 of the M. P. Civil Courts Act, 1958 deals with administrative control. Section 14 of this Act, is placed in Chapter 4 and provides that subject to the general superintendence and control of the High Court., the District Judge shall superintend and control all other Civil Courts in the local area within his jurisdiction. Section 15 thereof clothes the District Judge with power of distribution of business among Courts under his control. Accordingly, the learned Judge who passed the order dated 29-6-1976 as a public servant, is an authority who is administratively subordinate to the District Judge and not to the Additional District Judge. 13. Thus, the learned Additional District Judge had no jurisdiction to pass any order under section 195 (2) of the Code. The learned Additional District Judge is right in holding so. The order passed by the Additional District Judge is non est, rejecting the application instead of ordering return thereof. 14. So far as the applicant had preferred appeal in the Court of III Additional Sessions Judge, Gwalior being appeal No. 130/76, This appeal was dismissed by the order dated 25-2-1977. So far as this appeal is concerned, that too was incompetent. 14. So far as the applicant had preferred appeal in the Court of III Additional Sessions Judge, Gwalior being appeal No. 130/76, This appeal was dismissed by the order dated 25-2-1977. So far as this appeal is concerned, that too was incompetent. No appeal lay against the order passed by the Executing Court on 29-6-1976 under section 340 of the Code. Accordingly, finality attached to it by section 341 of the Code cannot be attached to the order passed therein. Order dated 25-2-1977 passed by the III Additional Sessions Judge is accordingly null and void. It is quoram non-Justice and having been passed by a Court having no jurisdiction it cannot be treated to be relevant. Accordingly, the passing of such order in an incompetent appeal cannot be regarded to be effective bar, to the consideration of the application under section 195(2) of the Code by the appropriate authority. This is the position of law which flows from section 44 of the Indian Evidence Act, 1872, thus: "44 Fraud or collusion in obtaining judgment or incompetency of Court, may be proved - Any party to suit or other proceedings may show that any judgment or order or decree which is relevant under sections 40, 41 or 42, and which has been delivered by a Court not competent to deliver it, or so obtained by fraud or collusion" The words 'not competent' in the aforesaid section refer to a Court acting without jurisdiction as held in Ketlilomma v. Kelappan, ILR 12 Mad. 228. It has been laid down in Sardarmal Jagannath v. A.S. Moodliar, ILR 21 Bom. 205 (212) that the "competency" of a Court and its 'jurisdiction' are synonymous terms. In R.V.B.P. of Chestor, (1947-48) 181, 25, 1 & C CJ held: Every species of judgment will be rendered inadmissible in evidence on proof being given that the Court which pronounced it has no jurisdiction." It is a fundamental principle that order passed by a Court without jurisdiction is nullity and that its invalidity could be relied upon. Applying these principles it has to be regarded that the order passed by the II Addl. Sessions Judge in Cr. A. No. 120-76 was passed in an incompetent proceeding (appeal). Applying these principles it has to be regarded that the order passed by the II Addl. Sessions Judge in Cr. A. No. 120-76 was passed in an incompetent proceeding (appeal). As such, that order, too, was without jurisdiction and the same cannot be set up a bar to the consideration on merits of the matter by authority competent to determine the question of withdrawal of the complaint. The learned Addl. District Judge has illegally considered himself to be bound by the same. 15. In view of the aforesaid discussion, since the learned First Additional District Judge had no jurisdiction to entertain application under section 195 (2) of the Code for ordering withdrawal of the complaint and the impugned order is void, the application filed by the applicant on 13 8 76 will be deemed to be pending in the eye of law. 16. The proceedings on application under section 195 (2) of the Code, were thus initiated in the Court, not having jurisdiction to dispose of the same. By virtue of section 24 of the Code of Civil Procedure, this Court his power to transfer the proceedings to the Court of District Judge, as held in Dr. K.L. Daftary v. K.L. Dube, AIR 1956 Nag. 44 wherein Sen, J., has laid down the law on the point thus: "The power of transfer vested in the High Court by section 24, Civil P. C., is not fettered by any conditions. The terms of the section are general. There is no bar to the exercise of powers under section 24 of the Code merely because there it a dispute on the question of jurisdiction. The mere fact that the suit appeal or other proceedings is pending in a Court not having jurisdiction to dispose of the same cannot oust the jurisdiction of the High Court to transfer it under section 24, Civil P. C." 17. Moreover, if the proceedings so originated by the decree-holder applicant in the Court of Additional District Judge are transferred to the Court of District Judge there will be no question of any limitation. The power and authority to act under section 195(2) of the Code are co-terminus with the trial of the complaint which has not yet even commenced. Thus, there will be no question of taking away any right vested in non-applicant by lapse of time. 18. The power and authority to act under section 195(2) of the Code are co-terminus with the trial of the complaint which has not yet even commenced. Thus, there will be no question of taking away any right vested in non-applicant by lapse of time. 18. Needless to state that nature of function under section 195 (2) of the Code is judicial in character. This provision confers a judicial discretion and not a power to act arbitrarily in the matter of ordering withdrawal or refusal to withdraw the complaint. 19. Accordingly, the revision deserves to be allowed and the impugned order passed by the Additional District Judge is hereby set aside. The proceeding, are ordered to be transferred to the District Judge, who will treat the proceedings to be under section 195(2) of the Code and decide the same in accordance with law. In view of the nature of controversy, the parties are directed to bear their costs incurred by them up to this stage.