JUDGMENT : ( 1. ) HEARD Shri R. K. Pandey on the question of admission. The petitioner Municipal Council raised a demand of property tax against the respondent No. 2 in respect of a house within the Municipal limits. A notice under section 164 (3) of the Municipalities Act was served upon the respondent No. 2 mailing a demand for payment of the tax assessed. The respondent No. 2 failed to satisfy the demand and, therefore, the petitioner Municipal Council made an application (Annexure P/1) before the Judicial Magistrate, First Class, Begumganj stating that as the amount demanded has not been paid, the same may be recovered by distress and sale of movable property of the respondent No. 2. By order dated 30-10-1986 (Annexure P/2), the Judicial Magistrate held that the application of the kind should be made only before the Executive Magistrate. Consequently, it was held that the judicial Magistrate has no jurisdiction to entertain that application and dismissed the same. The petitioner in this petition under Article 226 of the Constitution of India challenges the order Annexure p/2 and the submission is that the application should have been entertained by the Magistrate. ( 2. ) SECTION 165 (1) of the Municipalities Act is as follows : "165. General power of recovery of arrears.- (1) If a person on whom a notice of demand has been served under sub-section (1) of section 164 does not within fifteen days from the service of such notice pay the sum demanded in the notice, such sum with all cost rt recovery and interest may be recovered on application of the Council to a Magistrate having jurisdiction within the limits of the Municipality, and such Magistrate may order recovery by distress and sale of any movable property or attachment and sale of immovable property belonging to such person within the limits of his jurisdiction. " The function to be performed by the Magistrate under section 165 (1) of the Act clearly appears to be executive in nature. On presentation of an application under section 165 (1), the Magistrate has to satisfy himself that a demand for payment was raised in terms of section 164. On reaching such satisfaction, the Magistrate has to proceed to recover the same by distress. For realisation of the amount so due movable property can be sold and even immovable property can be attached and sold. On reaching such satisfaction, the Magistrate has to proceed to recover the same by distress. For realisation of the amount so due movable property can be sold and even immovable property can be attached and sold. It is thus clear that all the proceedings to be taken by the Magistrate under this provision are towards the realisation of the amount due and not paid. The Magistrate is not required to hold the person guilty of any act amounting to an offence and to impose punishment on him. ( 3. ) SUB-SECTION (3) of Section 3 of the Code of Criminal Procedure, 1973 provides that unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code to a Magistrate of the first Class shall be construed as a reference to the Judicial Magistrate of the first class. Further sub-section (4) of section 3 of the Code of Criminal Procedure reads thus : " (4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters - (a) which involves the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending" him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate, or (b) which are administrative or executive in nature, such as the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall subject as aforesaid, be exercisable by an Executive Magistrate. " From these two sub-sections of section 3 of the Code of Criminal Procedure, the following inferences appear clear : i) So long as any enactment other than the Criminal Procedure Code, does not otherwise provide, a reference in that enactment to "magistrate of the first class" would mean a reference to a Judicial Magistrate. ii) When a Magistrate is required to make a decision after appreciation of sifting of evidence and the consequence of such decision is to make any person liable for punishment or penalty or detention in custody pending investigation, inquiry or trial, such functions are exercisable only by the Judicial Magistrate. ii) When a Magistrate is required to make a decision after appreciation of sifting of evidence and the consequence of such decision is to make any person liable for punishment or penalty or detention in custody pending investigation, inquiry or trial, such functions are exercisable only by the Judicial Magistrate. iii) When the functions are executive in nature, these functions are to be discharged by Executive Magistrate. Clause (b) of sub-section (4) of section 3 of the Criminal Procedure Code mentions a few functions which are within the ambit of that section and may be either administrative or executive in nature. The functions so mentioned therein are only illustrative and can by no means be said to be exhaustive. Functions akin or similar to them will fall in either of the two categories, i. e. administrative or executive. We are in no doubt that the function of realisation of certain taxes by distress or sale of movable property or by attachment and sale of immovable property is only executive in nature. The Magistrate while acting under section 165 (1) of the Municipalities Act is neither required to appreciate or sift any evidence. He is not required to formulate any decision exposing any person to any punishment or penalty or detention in custody pending investigation or inquiry or trial. The decision will also not have the effect of sending such a person for trial before any court. We are, therefore, of opinion that in view of the nature of the function required to be performed by the Magistrate under section 165 (1) of the Criminal Procedure Code, the functions are only executive in nature and, therefore, have to be performed only by an Executive Magistrate but not by any Judicial Magistrate. ( 4. ) SINCE in the present case, the application under section 165 (1) of the municipalities Act was made to the Judicial Magistrate, the application was not maintainable arid the respondent No. 1 was right in holding that he had no jurisdiction to entertain that application. No exception, therefore, can be taken to the order Annexure P/2. ( 5. ) THE petition fails and is dismissed. Petition dismissed.