Judgment : Counter petitioners in M.C.No. 800 of 1989/B2 on the file of Executive I Class Magistrate and Revenue Divisional Officer, Namakkal, have filed this petition under Sec. 482, Crl.P.C. praying to call for the records in the above case and quash the same. 2. On the petition filed by the respondents before him under Sec. 147, Crl.P.C., the Executive I Class Magistrate and Revenue Divisional Officer, Namakkal, had issued notices to the petitioners informing them that the said M.C.No. 800 of 1989/ B2 would be taken up for enquiry on 3. 1989 at 11.00 a.m. and that petitioners and the respondents should appear with their witnesses and documents, failing which, exparte order would be passed. To quash the said notice, counter petitioners in the said petition have come forward with this quash petition. 3. Mr.K. Sengottian, learned counsel appearing for the petitioners would submit that, .(i) the impugned notice cannot be issued without the subjective satisfaction of the Executive Magistrate that a dispute likely to cause a breach of peace exists and in this case, no such subjective satisfaction had been expressed in the notice and hence it is invalid, and .(ii) there are civil suits between the parties in respect of the same land and while so, a proceeding under Sec. 147, Crl.P.C. cannot be initiated. 4. Per contra, learned counsel appearing for the respondents would submit that the impugned notice is in order and that this very revision petition is not maintainable in as much as the petitioners had already filed a revision before learned Sessions Judge, belatedly, with a petition to excuse the delay and that the said petition to excuse the delay was dismissed along with that revision petition and as such, the second revision by invoking the powers of this Court under Sec.482, Crl.P.C. is not maintainable. Regarding the later point, Mr. Sengottian, learned counsel for the petitioners would submit that the matter was not decided on merits before learned Sessions Judge and hence this petition is maintainable. 5. I have carefully considered the submissions made by rival counsels. With regard to the infirmity of the impugned notice, as I have already mentioned, the impugned notice calls upon the parties to appear on certain date with their witnesses and documents and would further state that in default thereof, the matter would be decided exparte. 5. I have carefully considered the submissions made by rival counsels. With regard to the infirmity of the impugned notice, as I have already mentioned, the impugned notice calls upon the parties to appear on certain date with their witnesses and documents and would further state that in default thereof, the matter would be decided exparte. To consider whether this impugned notice is infirm, Sec.147(1), Crl.P.C. needs extraction. It reads as follows: “Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, Whether such right be claimed as an easement or otherwise,, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his court in person or by pleader on a specified date and time and to put in written statements of their respective claims”. So, the pre-requisite, before requiring the parties concerned in such a dispute to attend his court in person or by pleader on a specified date and time, is the subjective satisfaction of the executive Magistrate that a dispute likely to cause a breach of peace exists. Such a subjective satisfaction is not given out in the impugned notice. As such, it is clearly infirm and liable to be quashed. I would also like to mention that the foundation for issuing such a notice or assuming jurisdiction for issuing such a notice would be the subjective satisfaction regarding existence of a dispute likely to cause a breach of peace. When that foundation is not there, his jurisdiction to require the parties to attend his court does not exist. 6. The other submission that because civil suits were pending, his order is infirm cannot be accepted for the reason that mere pendency of civil suits would not bar the initiation of proceedings under Sec. 147, Crl.P.C. 7. When that foundation is not there, his jurisdiction to require the parties to attend his court does not exist. 6. The other submission that because civil suits were pending, his order is infirm cannot be accepted for the reason that mere pendency of civil suits would not bar the initiation of proceedings under Sec. 147, Crl.P.C. 7. In Nagarathinam v. Sub Divisional Magistrate and Sub-Collector, Thanjavur 1992 M.L.J. (Crl.) 498, I have held that unless there is order or decree binding upon the parties, mere filing of a civil suit at an earlier point of time, cannot act as a cover up for all acts done by the plaintiff with regard to the suit property at any subsequent point of time though his action gives rise to circumstances warranting initiation of proceedings under Sec.145, Crl.P.C. so this submission cannot be sustained. 8. I shall pass on to consider whether this petition under Sec.482, Crl.P.C. is maintainable in view of the fact that already a revision was filed before the Sessions Judge against the impugned notice with a petition to excuse delay, which was dismissed. 9. In Dharampal v. Smt.Ramshri, 1993 Crl.L.J. 1049, the Apex Court had held that in a case where a revision was filed against the order of the Magistrate before the Sessions Judge and when such a revision was dismissed, a second revision before the High Court cannot be entertained in exercise of its inherent powers under Sec.482, Crl.P.C. The Apex Court has laid as follows: “The question that falls for our consideration now is whether the High Court could have utilised the powers under Sec.482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a criminal application being Cr.P.No. 180 of 1978 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Sec. 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Sec.482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. Sec. 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Sec.482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside.” 10. Mr. Sengottian, learned counsel for the petitioners would like to make a distinction by pointing out that in this case the revision was not decided on merits, because the petition to excuse delay was dismissed. He would rely upon the decision in Mangalathammal v. Inspector of Police (L. & O.), Thiruthuraipoondi, 1987 T.L.N.J. 22. In it, K.M. Natarajan, J. had referred to the rulings of the Supreme Court in Madhu Limayee v. State of Maharashtra, A.I.R. 1978 S.C. 47: (1978) 1 S.C.R. 749 , Raj Kapoor v. State (Delhi Administration), A.I.R. 1980 S.C. 258, Madam Naik v. Hamsubala Devi, A.I.R. 1983 S.C. 677 and Sarojee v. Babadin, 1975 Crl.L.J. 1562 and had stated that the ratio laid down in the above decisions is very clear that even though the second revision is not maintainable, yet, if the peculiar circumstances of the case warrant the exercise of the inherent jurisdiction by this Court under Sec.482, Crl.P.C., there is no bar in treating the revision under Sec.482, Crl.P.C. and then granting the necessary relief. 11. In Soosai Nayagam v. Pushpa Ritha, 1991 L.W. (Crl.) 362, Janarthanam, J. has observed as follows: “Coming to the contention regarding maintainability pleaded by learned counsel for respondents, I am of the view that the mere fact that the petitioner had exhausted the power of revision, does not mean that the power under Sec. 482, Crl.P.C. cannot be invoked. It has been laid down by the apex of the judicial administration of the country that such a power can be resorted to in extreme cases, where prejudice to the cause of justice is occasioned or when there is abuse of process of court." 12. With respect, I am in total agreement with the view expressed by Janarthanam, J. Coming to the facts of this case, the revision before learned Sessions Judge was not considered on merits but was dismissed since the petition to excuse delay in preferring the revision was dismissed. With respect, I am in total agreement with the view expressed by Janarthanam, J. Coming to the facts of this case, the revision before learned Sessions Judge was not considered on merits but was dismissed since the petition to excuse delay in preferring the revision was dismissed. Certainly, the impugned order was passed without jurisdiction inasmuch as the foundation necessary for requiring the parties to appear before him was not shown to exist and the impugned order is clearly illegal and invalid, and for a technical reason that order cannot be allowed to stand. For these reasons, in the instant case, it has to be set aside. 13. In the result, the petition is allowed and all further proceedings in M.C.No. 800 of 1989/B2 of the Executive I Class Magistrate and Revenue Divisional Officer, Namakkal, shall stand quashed.