right or wrong, must be carried out, and he dismissed the appeal.

Against his decision the present appeal to the High Court was preferred.

1880

HURO SUN

DARI

v.

JUGGOBUNDHOO DUTT

Baboo Aukhil Chunder Sen, and Baboo Kashee Kant Sen, for the Judgment. Appellants.

Baboo Bungshee Dhur Sen, for the Respondents.

The judgment of the High Court (1), which was as follows was delivered by

WHITE, J. :—

This is an appeal against an order of the District Judge of Dacca, dismissing an appeal which the appellants before us had preferred against an order passed by the Moousiff of Moonsheegunge on the 23rd of May 1879.

On the 8th of July 1878, the appellants had procured the reversal of an order, by which the Moonsiff had directed execution to issue for the possession of certain land under a decree obtained by the respondents. The reversal was procured on the ground that execution was barred. Inasmuch as before the reversal was obtained, the respondents had been put in possession of the land by the first Court, it became necessary for the appellants to apply, and he accordingly applied on the 23rd of May 1879 to be restored to possession. In consequence, however, of certain prior proceedings that had taken place (to which I shall presently refer), the Moonsiff simply made an order that a notice should be served on the opposite party, that is, the respondents, directing them to give up possession, which order the District Judge has confirmed on appeal.

The prior proceedings alluded to are these:-Very shortly after the appellants obtained the reversal of the order for execution, they, on the 6th of November 1878, made a similar application to the one that they made in May 1879, namely, to be restored to possession of the land. The Moonsiff on that occasion, instead of making the order, merely directed, as he did on the 23rd May (1) WHITE and FIELD, J.J.

WHITE, J.

1880

DARI บ.

Judgment. WHITE, J.

1879, that a notice should be given calling upon the respondents HURO SUN to give up possession. His reason for making the order in that limited form was that he could find no section in the Civil Code JUGGOBUN- which directed that when a decree which had been executed is reDHOO DUTT. versed, restitution should be made, or which provided any machinery for effecting the restitution. The reason is altogether insufficient. There was no occasion to resort to any section of the Code in order that a first Court may give effect to the order of an Appellate Court reversing its own order. It has full authority, and is moreover bound to execute the order of the appellate order; and if before the reversal, anything has been done under its own order, it has full authority, and is moreover bound to undo what has been so done, and put the parties back into precisely the same position as they stood before its own order was made. No appeal was preferred by preferred by the appellants against the Moonsiff's order of the 6th of November 1878, but after waiting some time, and not getting possession, they again applied to the Moonsiff to be put into possession. The Moonsiff refused that application (the ground on which he did so is not stated), but on that occasion the appellants did appeal to Mr. Dickens, the then Judge of Dacca. Mr. Dickens dismissed the appeal, on the ground that it was out of time, but at the same time made some observations which the present Judge of Dacca thinks that the appellants misunderstood, and which were that the proper course for the appellants to adopt was to apply to have effect given to the order of the 6th November 1878.

The present Judge of Dacca is of opinion that the suggestion made in Mr. Dickens' order when he dismissed the appeal was a suggestion that the proper way of carrying out the order of the 6th November was to direct the issue and service of the notice mentioned in the order. He has accordingly in that view of the case dismissed the appeal which was preferred to him against the order of the 23rd of May 1879, and he further states that in consequence of the order of the 6th November 1878, appellants, it must be

not having been appealed against by the

accepted as final and binding on the matter, and that whether it

is right or wrong it is now res-judicata.

I

1880

DARI v.

DHOO DUTT.

Judgment.

It is not necessary to consider what Mr. Dickens meant when he made the suggestion referred to, because whatever might HURO SUNhave been his intention, the appellants, in May 1879, made a fresh application to be put in possession of the property, which JUGGOBUNin our opinion ought to have been granted, unless the order of the 6th November is properly held to have the effect of a res judicata. It is not clear that the several applications ought to WHITE, J. be treated as distinct applications, to be restored to possession rather than as one continued application; but taking them as distinct applications they were in substance applications for the execution of the Appellate Court's decree. It has been held by the Privy Council in the case of Delhi and London Bank vs. Orchard, L. R., 4 I. A., 127, that the refusal of an application to execute a decree is not a bar to a second application being made for the execution of the same decree. The precise ground upon which their Lordship's decision proceeded is not stated. Possibly it may have been that the refusal of the application was not to be considered as an adjudication on the point. But whatever their reasons may be, the case that I have cited is a clear authority that the application which the appellants made on the 23rd May 1879 is not barred by the refusal either of their application on the 6th of November 1878, or of their intermediate applications between that date and the 23rd of May.

We have been referred to a case (appeal from appellate order No. 169 of 1878), in which my brother MITTER and myself held that a question decided in the course of prior execution proceedings was deemed res-judicata, and could not be raised again in subsequent proceedings. But that was a very different case from the present. There the question was as to the construction of a decree. It was raised by the judgment-debtor a second after it had on a previous application for execution been decided in favor of the judgment-creditor, and after the judgment-debtor had preferred an appeal against the decision but had not thought fit to prosecute it. The orders of both the lower Courts must be set aside, and we make the following order that the appellants be restored to the possession of the property of which the respondents were put in possession under the order for execution. which has been reversed.

The appeal will, therefore, be allowed with costs.

VOL. VII.

9

部

APPELLANTS.

Noctuare Courier/1872), sections 219 and 349-Approapprover, Proui yalong with his accomplicesPepero Committing Magistrate-Procedure on on, under section 349 of Criminal

There is grave loubt whether the deposition of an

oppeurva asta wire one Comumking Magistrate, may be used as evivane gjening dia quvvatigates cut heir irmi before the Sessions Court,

a The approver having been withdrawn.

kanik „Umited to an apurover, is withdrawn 'rocedure Code by the Sessions

• Püres de - Tisegu sugut 0 van encrusion of the trni of the

His deposition before the Magistrate was then used as evidence, not only against himself, but also against the others.

The result of the trial was, that all the prisoners were found guilty and sentenced to punishment.

They all appealed to the High Court.

The judgment of the High Court (1), (which so far as it is necessary that it should be stated for the purpose of this report, was as follows,) was delivered by

FIELD, J.:

This is a case of dacoity, in which eleven persons have been convicted. Three of them, Biramdihi Mirdha, Jadu Mirdha, and Nidhun Sirdar, have been sentenced to transportation for life, and the remaining eight, Romun Sirdar, Bhundee Mirdha, Tezu Mirdha, Tattu Khan, Jumna Ghoramee, Matu Paramanick, Komul Koiburto, and Joyudee Paramanick, to rigorous imprisonment for ten years each.

It appears that one of the accused persons, Joyudee Paramanick, was admitted as Queen's evidence by the Magistrate. When produced in the Court of the Sessions he retracted the statements made by him before the Committing Magistrate, and denied all knowledge of the facts of the dacoity.

The Sessions Judge, thereupon, proceeded under section 349 of the Code of Criminal Procedure, withdrew the conditional pardon, placed Joyudee Paramanick in the dock, drew up a charge against him, and proceeded to try him along with the ten prisoners against whom he had been produced as a witness for the prose

cution.

We are of opinion that the Sessions Judge would have exercised a wiser discretion if he had waited till the conclusion of the trial of the ten prisoners before him, and then (as required by section 349) before passing judgment concerning these prisoners, had proceeded under section 349 of the Code of Criminal Procedure in respect of the approver.

The deposition given by Joyudee Paramanick before the Committing Magistrate was used by the Sessions Judge at the trial as (1) WHITE and FIELD, J.J.

1880

In re JOYUDEE PARAMANICK.

Judgment.

FIELD, J.