John Stanley, C.J. and William burkitt, J.
1. This appeal has been preferred under the following circumstances. The defendant Musammat Bhawani executed a mortgage in favour of the plaintiff of certain property. She subsequently sued for redemption and obtained a decree on the 23rd of September 1901. She did not put the decree into execution, but took possession of the mortgaged property without the intervention of the Court on the day after the decree was passed. An appeal against the decree was preferred and the decree was reversed. On second appeal to the High Court the decree of. the lower appellate Court was affirmed. Thereupon the plaintiff appellant before us instituted a suit for recovery of the mortgaged property of which Musammat Bhawani had taken possession without the intervention of the Court. In the Court of first instance the plaintiff, to meet the defendant's objection that the claim was barred by Sections 244 and 583 of the Code of Civil Procedure, asked the Court, in the event of it holding that these sections were fatal to the suit, to treat the plaint as an application under them for restitution of the property. The Court of first instance dismissed the plaintiff's claim on the ground that it was barred by the sections to which we have referred. On appeal the lower appellate Court upheld the decision of the Court of first instance and stated as regards the application to have the plaint treated as an application under Section 244 and Section 583 that 'the Court might have so admitted it had the appellant allowed that no regular suit lay; but the appellant has contested this point up to the appellate Court' On this account the learned District Judge considered that it would have been improper for the lower Court, and still more so for him, to treat the plaint as an application.
2. An appeal has now been preferred to this Court, and the main grounds of appeal are that Sections 244 and 583 do not stand in the way of a suit; that Section 583 does not bar the institution of a regular suit, and that in any case if these sections are applicable, the Judge ought to have treated the plaint as an application under them. We are disposed to think that the sections in question do forbid a suit such as the present one. By the language of Section 244 a suit is prohibited. Although there is no express prohibition against the institution of a suit for recovery of property by way of restitution or otherwise contained in Section 583, still the language of that section, coupled with the prohibition in Section 244, appeal's to be imperative. The words are: 'When a party entitled to any benefit by way of restitution or otherwise under a decree passed in an appeal desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred, and such Court shall proceed to execute the decree parsed in appeal according to the rules prescribed for the execution of decrees in suits.' This apparently is the view which was taken by the learned Judges of this Court who decided the cases of Dhan Kunwar v. Mahtab Singh (1899) I.L.R. 22 All., 79 and Saran v. Bhagwan (1903) I.L.R. 25 All., 441. We think, however, that in the present instance at all events the Courts below ought to have acceded to the request of the plaintiff appellant and treated the plaint as an application under the sections to which we have referred. The reason assigned by the learned District Judge for his refusal to entertain this application does not appear to us to be reasonable. We therefore allow this appeal, set aside the decrees of both the lower Courts and remand the suit to the Court of first instance through the learned District Judge under Section 562 of the Code of Civil Procedure, with directions that the plaint be treated as an application under Sections 244 and 583 and be disposed of on the merits. Costs here and hitherto will abide the event.